MAKOYE MAKOJA JANGU

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA SUB REGISTRY OF SHINYANGA AT SHINYANGA CIVIL REFERENCE NO. 13012/2024 (Arising from the Ruling of the Taxing Master dated 28th March, 2024 in Taxation Cause No. 1 of 2023) MAKOYE MAKOJA JANGU…….……………………....……APPLICANT (Administrator of the Estate of the Late MAKOJA JANGU WILU) VERSUS JULIUS NYAGA NJOLOLO……………….……..……1ST RESPONDENT MKASIWA AUCTION MART AND COURT BROKER CO. LTD………………………...…2ND RESPONDENT RULING 24th July & 19th August, 2024. MASSAM J:. This application was brought under Order 7(1) of the Advocates Remuneration Order [Cap 341 R.E 2015]. The chamber application was supported by an affidavit sworn by Makoye Makoja Jangu the applicant. The application was contested by the Respondent through counter affidavit deponed by Mr. Bakari Chubwa Muheza, advocate for the Respondent. 1 The Applicant in this application was aggrieved by the decision of the Deputy Registrar (Taxing master) in Taxation Cause No. 1 of 2023 delivered on 28/03/2024. The Applicants prays for this court to quash and set aside the ruling and proceed to tax the bill of costs in accordance with the law. As a matter of legal representation, the Applicant enjoyed the service of Ms. Marina Mashimba advocate and the Respondent was represented by Bakari Chubwa Muheza, learned advocate. Arguing in support of application Ms. Marina Mashimba submitted that she prays the ruling dated on 28/3/2024 by the taxing master to be set aside as the same was taxed against the law and this court to proceed to tax it in accordance of the law. She stated that the application was supported by the affidavit which was sworn by applicant himself on 18/4/2024 and she prays the same to be adopted as part of her submission. She added that applicant was plaintiff in the Land Case No. 8 /2021 which was dismissed for want of prosecution on 20/4/2023, and according to that, 1st defendant/decree holder filed the bill of costs in Taxation No. 1 of 2023 claiming amount of Tshs. 17,840,000/= as a costs incurred to defend his case, but the same was opposed by the judgment debtor/applicant that the said costs was too excessive but at the end the 2 taxing master taxed the same to TZS 16,590,000/= Ms. Mashimba continued to say that applicant is challenged only the instruction fees which was awarded of TZS 16,000,000/= as it was too excessive as the matter was dismissed at the earliest stage, it did not went to the full trial. She added that the law is very clear in Order X11 Rule 1 of the Advocate Remuneration Order 2015 that taxing officer has discretion to allow such costs charge and expenses as authorized to order or appear to him to be necessary or proper for attainment of justice. And it is very clear that his decision cannot be interfered unless and until proved that taxing officer excised his/her powers unjudicial or acted upon wrong or applied a wrong consideration. She cemented her submission with a case of Tanzania Rent a car Ltd v Peter Kimuhu Civil Reference No. 9 of 2022 CAT Dar es salaam which shows the circumstances where the court can interfere the taxing officer decision and one of the factor is where the taxing officer apply wrong consideration as in taxing the bill of costs, taxing officer required to consider the greater amount of work involved, the complexity of the case, time taken, attendances, correspondences, perusal and consulted authorities or arguments. She continued to start that the said case the court observed that the said case was not heard on merit but was struck out by preliminary hearing raised by the respondent. She 3 insisted that in this case if the taxing master could consider that factors he could tax it in lower level. She insisted that the act of the decree holder of taxing the amount of TZS 16,000,000/= as prayed by decree holder he did not exercise his powers judiciously as the case was not heard on merit and the same was not complex as it was dismissed in the initial stage, so time taken was not long. Lastly she prayed to this court to interfere the taxing officer decision and tax the instruction fees at a reasonable amount regarding the circumstances of the case. In Contesting the application, Mr. Bakari Chubwa Muheza Advocate adopted the contents of the counter affidavit and submitted that there are no factual and legal errors in the ruling by taxing master in Taxation Cause No. 1 of 2023. He added by saying that the applicant in her submission was insisting the issue of discretion of taxing master something which was not right as the amount awarded of TZS 16,000,000/= was already paid to the advocate, also he said that in taxing master ruling in page No 3 and 4 it said that the court proved the payment of court fees by showing the receipts of the court fees. Again the award given was according to the value of the subject matter, again respondent stated that the law allowed the same to be charged at the rate of 3 percent but in his case he charge it to the rate of 2 percent thus why they claim amount of Tshs. 4 16,000,000/= instead of 24,000,000/=Again respondent continued to state that taxing master was right to charge that amount as he had that discretion as per 9th schedule item 8 of the Advocates Remuneration Order 2015 as the law directs that if the subject matter is more than TZS 400,000,000/= the amount to be charged will be 3 percent of the value but in their side they bargain it to 2 percent and he cement his argument with the case of Elizabeth Timothy Balali vs. Zainab Riziki Bakilan Reference No. 22 of 2020 High court Dar es salaam. He added that the aim of the bill of costs is not to punish the judgment debtor but to disburse the decree holder for the costs used and because in this case the same was proved it does not matter if the matter was heard full trial or not. Lastly, he said that taxing master exercised well his discretion that’s why he awarded TZS 250,000/= in disbursement instead of Tshs. 1,8000,000/= claimed, and he prays the decision of taxing master to remain undisturbed and applicant’s application to be dismissed. In her rejoinder Ms. Mashimba submitted that she heard the respondent submission. She added that respondent said that he is supporting the principles given in the case of Rent of the car (supra) but he did not say why the same is not applicable in this case .Also nowhere in the ruling show that respondent proof his claim by attaching the 5 payment receipt of instruction fees but it shown that there was a proof of payment of court fees. Also no exhibit was shown to proof that respondent paid the said amount to the advocate so what was he said was the mere allegation and absence of the said receipt what claimed remained baseless. Ms. Mashimba added that the issue that taxing master awarded the cost because of the value of the subject matter was not judicially as taxing master was required to consider other factors as per the requirement of the law. Lastly Ms. Machimba prayed to this court to interfere the decision of the taxing master and allow the same as per requirement of the law. Having considered the record in Taxation Cause No. 1 of 2023 chamber application, affidavit, counter affidavit and the submissions by counsel for the parties in respect of this application, this court finds that the pertinent issue for determination is whether the ruling by DR is incompetent. It was argued by the Applicants' counsel that the bill of costs which was taxed by the Deputy Registrar was not taxed judicially as it was too excessive especially in instruction fees compared with the work done and time taken. She said that the matter was not went to the full trial but was 6 dismissed for want of prosecution .She added that she knows that taxing officer under Order XII Rule 1 of the Advocate Remuneration Order that taxing master has discretion but its discretion required to be exercised judicially, in considering the work done, time taken, complexity of the case and nature of the case, so the award of TZS 16,000,000/= which was granted by the taxing officer was not judiciously as the taxing master did not consider that factors. She lastly said that the taxing officer required to consider the value of the subject matter and other factors. In the side of respondent Mr. Chubwa said that the award given was fair as the taxing master award the same by considering the value of the subject matter in the original case, and he brought a proof of payment of court fees. It is in record that the decree holder claimed amount of TZS 17,840,000/= as instruction fees and disbursement, and it is true that the same was awarded to TZS 16,590,000/= This court has no doubt that the item which applicant is challenging is only instruction fees which is TZS 16,000,000/= After heard the submission of both parties ,this court is in support of both submission that in taxing the bill of costs taxing officer required to consider the value of the subject matter as per 9th schedule item 8 of 7 the Advocates Remuneration Order but also in consideration of the nature of the case and its complexity, time taken and work done, as it is very clear that successful litigant ought to be fairly reimbursed for the costs he reasonably incurred, see the case of Premchand Raichand Ltd and Another vs. Quarry Services of East Africa Ltd and others [1972] 1 E.A 162. Again this court wishes to be guided with the provision of para 6 (2) a of the 3rd schedule of the rules which said that (2) The fee to be allowed for instruction to appeal or to oppose an appeal shall be such sum as the taxing officer shall consider reasonable, having regard the amount involved in the appeal. Its nature, importance and difficulty, the interest of the parties, the other costs to be allowed, the general conduct of the proceedings the fund or person to bear the costs and all other relevant circumstances. Coming to our case as submitted by the applicant counsel Ms. Mashimba said that the case was not heard on full as was dismissed for want of prosecution so the matter was not complex and time taken was not much, this court is in support of applicant submission that the time taken was not much and the same was not complex and the amount of work involved was not of much. But to the side of advocate for respondent said that the taxing master awarded that amount after been 8 tendered by the proof of payment of court fees and consideration of the value of the subject matter but Ms. Mashimba objected by starting that respondent was required to tender the receipts of payment of the instruction fees and not the receipts of the court fees, this court is in support of the applicant submission because the applicant is not challenging the payment of court fees but the award of instruction fees which is alleging to be excessive, so it very clear that respondent was required to bring the proof of payment of the instruction fees and not court fees, and in perusal of the court file this court find nowhere respondent attached the said receipt as he stated in his submission, This court is aware that instruction fees is supposed to compensate the successful litigant for the costs incurred and not to enrich him, as it was held in the case of Rahim v Alibhai Kaderb hai (1938)1 TLR (R) 676 Where the court held that, “costs should not be excessive or oppressive but only such as are necessary for the conduct of the litigation”. Coming to this court the case was dismissed for want of prosecution and the taxing officer awarded decreed holder amount of TZS 16,000,0000/= for the reasons that he considered the value of subject 9 matter which was estimated to TZS 800,000/=but in my side I found out that, in consideration of the said fact and provision of para 9(2) (3) and 4 of the 3rd schedule the taxing officer was required to consider also other factors like time taken, complexity of the matter and its nature and work done by the advocate may be the amount could be awarded in the lowest rate. So this court is its view that the amount of TZS 16,000,000/= which was awarded to the case which was dismissed for want of prosecution was excessive and was in violation of taxation principle of consistence which resulted into a wrong consideration and because this court found out that the amount awarded is excessive the duty of this court is to reduce the awarded amount of instruction fees charged as the case was not complex and time taken was not much as the matter was dismissed at the earliest stage. In the final analysis, I find merit in this application and hereby set aside the award charged by the taxing officer and I am satisfied that the reasonable amount to be awarded as instruction fees should be a total sum of TZS 4,000,000/= I thus substitute the amount of TZS 16,000,000/= which awarded by the taxing officer with TZS 4,000,000/= as instruction fees which I am with view that it will meet the justice of this 10 case. In the event this reference is allowed to the extent stated above. In regard to the circumstances of this case, no order to the costs. It is so ordered. Dated at Shinyanga this 19th August, 2024. R.B. Massam JUDGE 11