MAGILI CHIBA V NGEGELE JOJOA

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF MWANZA AT MWANZA LAND REFERENCE NO. 2 OF 2023 MAGILI NGWELI JOJO CHIBA.......................................................... APPLICANT VERSUS NGEGELE JOJOA.................................................................... 1st RESPONDENT SENDAMA NGEGELE............................................................. 2nd RESPONDENT RULING 26/9/2023 & 31/10/2023 ROBERT, J:- The matter before the court involves a reference under Order 7(1) of the Advocates Remuneration Order, G.N. No. 263 of 2015, initiated by the applicant, Magili Ngweli Jojo Chiba, against the respondents, Ngegele Jojoa (1st respondent) and Sendema Ngegele (2nd respondent), challenging the decision of the Taxing Officer arising from Application No. 97/2022 before the District Land and Housing Tribunal for Mwanza. The application is supported by an affidavit sworn by the Applicant and opposed by the respondents. Counsel for the applicant, Mr. Arnorld Katunzi, presented three points for determination by the court: (1) Whether it was proper for the taxing officer to allow the respondents to be paid Tshs. 965,000/=, while the costs not allowed was Tshs. 5,005,000/= equivalent to 5/6 of the claimed amount. (2) Whether it was proper for the taxing officer to allow costs against the applicant in his personal capacity while the suit which gave rise to taxation proceedings was brought by the applicant in his legal representative capacity as administrator of the deceased's estates. (3) Whether it was proper for the taxing officer to allow costs which were not equivalent to dates and tasks/events claimed to be done. At the request of parties, the application was argued by way of written submissions. Addressing the first issue, counsel for the Applicant Mr. Arnold Katunzi argued that the Taxing Officer should have disallowed all costs since more than one-sixth of the claimed amount was disallowed, citing Order 48 of The Advocates Remuneration Order, G.N. No. 263 of 2015. To bolster his argument, he referenced a similar decision of this Court in the case of Elizabeth Titto and another vs. Agnes Erasto Malungwa, Civil Reference No. 06/2022. 2 Regarding the second issue, counsel contended that costs should not have been allowed against the applicant in his personal capacity, as the suit giving rise to the taxation proceedings was filed in his capacity as the legal representative of the deceased's estate. On the third issue, counsel argued that costs were allowed for tasks/events that did not correspond to the dates claimed in the bill of costs, and false folios were included. In response, Mr. Joseph Mange, counsel for the respondents challenged the verification of paragraph 4 of the applicant's affidavit, stating it was not verified in the verification clause and should be expunged from the records. He argued that the remaining paragraphs lacked merit once paragraph 4 was disregarded. Regarding the first issue, the learned counsel asserted that the Taxing Officer's decision to allow costs was proper and within their discretion, as guided by Order 12(1) of the Advocates Remuneration Order, GN. No. 263 of 2015. 3 Addressing the second issue, he contended that a clerical error in typing should not prejudice their rights, and the application for bill of costs was filed against the applicant in their representative capacity. Regarding the third issue, respondents argued that the dates referenced in the bill of costs were accurate and supported by the tribunal's records. The court carefully considered the arguments presented by both parties and scrutinized the relevant legal provisions governing the taxation of costs. Starting with the verification issue raised by the respondents regarding paragraph 4 of the applicant's affidavit, the court acknowledges that the failure to verify this paragraph in the verification clause does raise concerns about its validity and therefore the Court proceeds to expunge paragraph 4 of the affidavit from the records of this application. However, upon examination of the remaining paragraphs, it is evident that the application can still be determined based on the other assertions made in the affidavit. Therefore, the court proceeds to address the substantive issues raised by the applicant. 4 The first issue raised by the applicant revolves around the proper application of Order 48 of The Advocates Remuneration Order, G.N. No. 263 of 2015, which governs the disallowance of costs in cases where more than one-sixth of the claimed amount is disallowed by the Taxing Officer. Order 48 of The Advocates Remuneration Order states: "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 ofsuch taxation." This provision sets a clear threshold for the disallowance of costs. If more than one-sixth of the total claimed amount is disallowed, then the party presenting the bill for taxation forfeits their entitlement to the costs of taxation. The rationale behind this provision is to discourage inflated or unreasonable claims for costs and to ensure that parties bear the consequences of making such claims. In support of their argument, the applicant cited the case of Elizabeth Titto and another vs. Agnes Erasto Malungwa, Civil Reference No. 06/2022, High Court, Mwanza registry (unreported). In this case, the court interpreted Order 48 of the Advocates Remuneration Order and disallowed the entire bill of costs because the disallowed amount by the Taxing Officer 5 exceeded one-sixth of the total claimed amount. This precedent supports the applicant's contention that when the disallowed amount exceeds one-sixth, all costs should be disallowed. The court, upon considering the provision and precedent cited by the applicant, finds merit in the applicant's argument. The Taxing Officer's decision to allow any costs to the respondents, despite the disallowed amount exceeding one-sixth of the total claimed amount, contravenes the clear directive of Order 48. Therefore, the court concludes that the Taxing Officer erred in allowing any costs to the respondents under these circumstances. Moving to the second issue, the court examined whether it was proper for costs to be allowed against the applicant in their personal capacity. The court noted that the suit giving rise to the taxation proceedings was filed by the applicant in their capacity as the legal representative of the deceased's estate. Therefore, any costs awarded should have been against the estate, not the personal assets of the applicant. The court finds that the Taxing Officer's decision to allow costs against the applicant personally was erroneous and not in accordance with the nature of the suit. 6 Lastly, the court considered the third issue raised by the applicant regarding the accuracy of the dates and tasks/events claimed in the bill of costs. Upon review, the court found merit in the applicant's argument that costs were allowed for tasks/events that did not correspond to the dates claimed in the bill of costs. Additionally, the inclusion of false folios further undermined the accuracy of the bill of costs. Therefore, the court finds that the Taxing Officer's decision to allow these costs was improper and lacked sufficient basis. In conclusion, the court quashes the decision of the Taxing Officer and sets aside the awarded costs. The application by the applicant is allowed. I make no order for costs in this application. It is so ordered. 31/10/2023 7