Reference No

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA LAND DIVISION AT PAR ES SALAAM REFERENCE NO. 7762 OF 2024 (Originating from Bill of Costs No. 174/2023) LYDIA MWAMIKO................................................................ 1STAPPLICANT GRACE HAULE...................................................................... 2NDAPPLICANT VERSUS AYUBU HUSSEIN BANZI......................................................... RESPONDENT RULING Date of last Order: 10/12/2024 Date of Ruling: 23/12/2024 LALTAIKA, J This Ruling resolves an Application for Reference arising from the decision of the Taxing Master regarding the taxation of costs. The Applicants filed this Reference under paragraph 1(d) of the 11th Schedule, Orders 12(1), 48, and 55(3) of the Advocates Remuneration Order, 2015 (G.N. No. 264 of 2015), challenging the quantum of costs awarded by the Taxing Master. Page 1 of 10 When the Application was called for mention on 27/08/2024 parties opted for hearing by way of written submissions. With a nod of approval by this Court, the following schedule was ordered: Applicants' submission in chief to be filed on 9/9/2024, Respondent's Reply: 23/9/2024, Rejoinder if any: 30/9/2024 Mention for necessary orders to fix the date of Ruling: 30/9/2024 (Monday at 9: OO AM). Admittedly, something unusual happened on the date of mention. In the absence of either party, this court erroneously inspected the physical file which contained no copy of the submissions ordered and proceeded to dismiss the application for want of prosecution. The action was inspired by practice in some parts of our jurisdiction where parties still file both electronic and physical copies of their submissions. This is probably due to challenges of connectivity and the high number of legal aid providers who, it is alleged, do not have the credentials and or the motivation to open accounts on the e-filing system. On realizing that parties had indeed filed their submissions online as required, I was obliged to vacate my dismissal order and proceed to consider the submissions for determination of the application on merit. Any inconvenience caused to the parties is sincerely regrated. Page 2 of 10 Noteworthy, the Applicants and the Respondent enjoyed the skilful legal services of Messrs BONIFACE E. MELI and HASSAN ATHUMAN FATIU, learned Advocates, respectively. Their insightful submissions and case law referenced are highly appreciated. The next part of this Ruling is, in that order, a summary of submissions by both parties, my analysis of the law and the verdict. Mr. Meli started off his submission by arguing that in determining an application for taxation reference, it is a settled principle of law that the reference must be based on a point of law or on grounds that the taxed bill was manifestly excessive or inadequate. He referred to the case of Southern Highland Earthworks Company Ltd v. UAP Insurance Tanzania Ltd, Taxation Reference No. 01/2021, HC at Songea (Unreported), with approval from the case of Asea Brown Ltd v. Bawaziri Glass Works Ltd and Another [2005] 1 EA 17. He further submitted that the exercise of a Taxing Officer's discretion could not be interfered with easily by the court unless there were exceptional grounds. Citing the case of Gautam Jayram Chavda v. Covell Mathews Partnership, Taxation Reference No. 21 of 2004, CAT at DSM Page 3 of 10 (Unreported), he emphasized that the court would only intervene where there had been an error in principle. Mr. Meli outlined factors that the Taxing Master must consider in determining the award, rejection, or reduction of the amounts claimed. According to Mr. Meli, they include: i. The suit amount. ii. The nature of the subject matter. Hi. The complexity of the suit. iv. Time taken for the hearing and the extent of research involved. v. The parties' general behaviour and facilitation of expeditious disposal. vi. Public policy to ensure litigation is affordable; and vii. Maintenance of consistency in the quantum of costs allowed. Referencing the case of VIP Engineering and Marketing Ltd v. Citibank Tanzania Limited, Civil Application No. 24 of 2019, CAT at DSM (Unreported) and Rahim Hasham v. Alibhai Kaderhai [1938] 1 T.L.R (R) 676, Mr. Meli emphasized that this court has the power to reduce instruction fees if the Taxing Officer acted on wrong principles or considerations. The learned Advocate contended that the same principle was reiterated in Premchand Raichard v. Quarry Services [1972] EA 162, Page 4 of 10 where the court noted that it would only interfere when the award by the Taxing Officer was so high or low as to cause injustice. Mr. Meli contended further that the Applicant’s affidavit, specifically paragraphs 7 and 8, identified irregularities and illegalities in the Taxing Master's ruling. According to him, the amount taxed was not in parity with the scales provided by the Advocate Remuneration Order of 2015, as it was taxed at a higher scale without proper analysis of the Applicant's submissions in chief. He also pointed out that the Respondent joined the case at a later stage and participated minimally. The case had not progressed beyond the preliminary stage, reasoned the learned Advocate, yet the Taxing Master awarded instruction fees of TZS 3,000,000/=. He argued that this amount was excessive, considering that the Respondent's counsel appeared in court only twice, the hearing was conducted through written submissions, and no complexity or extensive research was involved. Referring to Tanzania Rent A Car Limited v. Peter Kimuhu, Civil Reference No. 9 of 2020, CAT at DSM (Unreported), he submitted that the principles laid down in Premchand Raichard Ltd and Another (Supra) Page 5 of 10 emphasized consistency in awards to ensure fairness and accessibility to justice. Citing several other authorities including National Bank of Commerce Limited v. MM Worldwide Trading Co. Ltd and 2 Others, Misc. Commercial Cause No. 217 of 2015 and C.B. Ndege v. E.O. Aliya & AG [1988] TLR 91, he submitted that instruction fees must reflect the time, energy, and complexity involved in the case. He emphasized that pegging costs on the value of the subject matter alone was inappropriate and led to unjust outcomes. Mr. Meli concluded by submitting that the taxed amount of TZS 3,000,000/= was excessive and unjustified. He urged the court to quash the Taxing Master's ruling and substitute it with TZS 2,230,000/=, which he argued would meet the justice of the case. Mr. Fatiu, Counsel for the Respondent, vehemently objected to the application. He asserted that the Applicants' complaints were neither based on points of law, nor errors, nor excessive billing, but solely on the quantum of the award. He emphasized that courts would only interfere with the award of a Taxing Officer in very exceptional circumstances, such as Page 6 of 10 when there is a wrong application of the law, an error, or an award that is so high or low as to cause injustice to either party. He further elaborated that the findings, ruling, and order of the Taxing Master in taxing the bill of costs in question revolved around the application of laws, including paragraph 1(d) of the 11th Schedule, Orders 12(1), 48, and 55(3) of the Order, Item 23(a) of the 8th Schedule of the Advocates Remuneration Order, 2015; G.N. No. 264 of 2015, and the cases of Premachand Raichand Ltd & Another Vs. Quarry Services of East Africa Ltd & Another (Supra) and TANZANIA RENT CAR LTD Vs. PETER KIMUHU, Civil Reference No. 9 of 2020. He contended that the Applicants should have based their Reference submission on challenging the Taxing Master's application of these laws, but they had failed to do so. Mr. Fatiu reiterated the Applicants' Counsel's assertion that for a taxation reference to be entertained by the court, it must be based on points of law or on grounds that the bill as taxed was manifestly excessive or inadequate. He referred to the cases of SOUTHERN HIGHLAND EARTHWORKS COMPANY LTD VS. UAP INSURANCE TANZANIA LTD (supra) and ASEA BROWN LTD Vs. BAWAZIRI GLASS WORKS LTD & ANOTHER [2005] 1 EA 17 at page 4 to buttress his argument. He asserted Page 7 of 10 that there were no exceptional grounds in this matter to justify court interference with the Taxing Officer's award. Mr. Fatiu also cited the case of VIP ENGINEERING AND MARKETING LTD Vs. CITIBANK TANZANIA LTD, Civil Application No. 24/2019 CAT, at DSM at page 10, which was reiterated in RAHIM HASHAM Vs. ALIBHAI KADERHAI [1938] TLR 676, where it was held that the court has the power to reduce an instruction fee allowed by the Taxing Officer only if the latter acted upon wrong principles or applied wrong considerations. Counsel contended that the Applicants' assertion of irregularities and illegality in the Taxing Master's ruling, on the basis that the amount taxed was not in parity with the scale provided by the Advocate Remuneration Order of 2015, was baseless. He argued that the Applicants had failed to demonstrate which specific laws, principles, or scales of law/principles were violated by the Taxing Master. In conclusion, Mr. Fatiu prayed for the Application to be struck out with costs. I have dispassionately considered the rival submissions. To resolve the contention, two issues are relevant for my determination. First, Page 8 of 10 whether the Taxing Master's award was based on a wrong application of the law or principle. Second, whether the Applicants have established exceptional grounds justifying interference with the Taxing Master's decision. On the first issue, the Respondent's Counsel has convincingly argued that the Taxing Master's decision was firmly anchored in the relevant laws, namely paragraph 1(d) of the 11th Schedule, Orders 12(1), 48, and 55(3), and Item 23(a) of the 8th Schedule of the Advocates Remuneration Order, 2015. These provisions provide clear guidelines for determining the quantum of costs in legal proceedings. The Applicants, however, failed to identify any specific misapplication or misinterpretation of these provisions. Their submissions focused broadly on dissatisfaction with the outcome rather than pointing to concrete errors in the application of the law or established principles. I, therefore, concur with the Respondent that the Taxing Master's decision adhered to the applicable legal framework and principles. On the second issue, I am guided by the well-established principle that interference with the discretion of the Taxing Master is only warranted in exceptional circumstances. As reiterated in PREMACHAND RAICHAND Page 9 of 10 LTD & ANOTHER Vs. QUARRY SERVICES OF EAST AFRICA LTD & ANOTHER (supra), a court will only disturb a Taxing Master's decision where there is clear evidence of a wrong application of the law or principles, or where the award is so high or low as to amount to an injustice. The Applicants' submissions, however, merely express dissatisfaction with the quantum awarded without demonstrating any manifest error or injustice. They neither pointed out errors in principle nor provided evidence of a grossly excessive or inadequate award. As such, this Court finds no exceptional grounds that would justify setting aside or varying the decision of the Taxing Master. In the upshot, the application is hereby dismissed for lack of merit. Each party to bear their own costs. It is do ordered. Page 10 of 10