RULING MASANJA HANGI MBAYA VS

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MWANZA SUB-REGISTRY

AT MWANZA REFERENCE NO. 25188 OF 2024 (Arising from Taxation Cause No. 10094/2024 Originating from Misc. Civil Application No. 26766 of 2024 both of the both of the District Court of Nyamagana) MASANJA HANGI MBAYA ............................................................... APPLICANT

VERSUS ELINISA SHUMA MURO ............................................................... RESPONDENT

RULING 24th & 28th March, 2025 E.L. NGIGWANA, J This is an application for reference brought by way of chamber summons made under Order 7(1) of the Advocates Remuneration Order, 2015 (GN No. 264 of 2015) (the Advocates Remuneration Order), supported by an affidavit of the applicant. The applicant is seeking the following orders; (a)That this Hounourable Court be pleased to reduce the sum allowed in Taxation Cause No. 10094/2024, which was awarded by the Taxing Master. (b) That this Honourable Court be pleased to nullify Taxation Cause No. 26766/2024 dated 20th day of September, 2024. (c) Costs be provided for 1|Page (d) Any other relief as the court may deem just and fit to grant. Upon being served with the chamber summons, there was no counter affidavit filed by the respondent to contest the application. Brief facts leading to this application as per available records are to the effect that sometime in 2023, the applicant filed Misc. Application No.26766/2023 before the District Court Nyamagana, seeking a temporary injunction against the respondent and City Group Tanzania Limited (not a party to this application). The respondent, upon being served with a copy of the application, filed a counter affidavit to contest the same. However, on 14/03/2024, the applicant, through his advocate, Mr. Beatus Linda, prayed to withdraw the application without costs because it was

already overtaken by events. Upon considering that the respondent had already filed a counter affidavit to contest the application, the application was marked withdrawn with costs. The prayer to withdraw the application was not objected to by Mr. Anold Katunzi, learned advocate for the applicant, but he prayed for costs. 2|Page Thereafter, the applicant herein lodged Taxation Cause No. 10094/2024, claiming TZS. 1000,000/= being the instruction fee, as per item 11th Schedule, item 1(m)(ii) of the Advocates Remuneration Order, 2015, attendance fee and filing fee, all to make a sum of TZS.1410,000/= Upon hearing the parties on the application, the Taxing Master, in his ruling delivered on 20/09/2024, awarded the respondent a total sum of TZS. 1,170,000. The rest of the items were taxed off. Aggrieved, the applicant has preferred this reference on the ground that the awarded amount is excessive, hence contrary to taxation principles. When this matter came on for hearing, the applicant was represented by Mr. Beatus Linda, learned counsel, whereas the respondent had service of Mr. Anold Katunzi, learned counsel. The application was heard viva voce. When called upon to take the floor, Mr. Beatus adopted the affidavit supporting the application and argued that the Taxing Master awarded payment of TZS 1,000,000/= without taking into account the fact that Misc. Application No. 26766/2024

was withdrawn without objection. He contended that the taxing master applied the wrong principle to award such an excessive sum. He elaborated that the amount that ought to have 3|Page been awarded as an instruction fee as per 11th Schedule, item 1(m)(i) of the Advocates Remunerations Order, 2015 is TZS. 500,000/= because the application was unopposed. He concluded his brief submission by praying to the Court to reduce the amount awarded from TZS. 1000,000/= to TZS. 500,000/=. He also prayed to the court to consider regulation 48 of the Advocates Remunerations Order, 2015. In reply, Mr. Katunzi submitted that the amount that was awarded was very proper as per the 11th Schedule, item 1(m)(ii) of the Advocates Remuneration Order, 2015 because the application was opposed. He went on to explain that the respondent was served with a chamber summons and, as a result, he filed a counter affidavit to contest the application that act sufficed to show that the application was opposed; the fact that, later on, the same was withdrawn without objection does not mean that the application was not opposed. He concluded his brief submission by praying for the dismissal of this application with costs. 4|Page In his rejoinder submission, Mr. Beatus stated that application No. Misc. Application No. 26766/2024 was withdrawn by the applicant, meaning it was not argued, therefore, it cannot be said

it was opposed. I have taken time to chew and digest the rival submissions by the learned advocates as well as perusing the necessary documents filed before the court; therefore, the issue for determination is whether this application is meritorious. In the case at hand, it is undisputed that Misc. Application No. 26766/2024 was withdrawn with costs despite the respondent’s prayer to withdraw the same without costs. The applicant lodged Taxation Cause No.10094/2024, which is the sum of TZS. 1,170,000/= was awarded, TZS.1000,000/= being the instruction fee. It is a well-settled principle that the exercise of the Taxing Officer's discretion cannot be easily interfered with by the Court unless there are exceptional grounds. In other words, allowance of instruction fees is a matter which is in the Taxing officer's discretion, and for that matter, courts are reluctant to interfere with that discretion unless it can be shown that the Taxing Officer's decision was based on an error of principle 5|Page or the fees awarded were manifestly excessive as to justify an inference. See Haji Athumani Issa v. Rweitama Mutatu (1992) TLR 372; Premchand Raichand Ltd and another versus Quarry Services of East Africa Ltd and Other (1972) 1 EA 162, and Anand Satyavan Chande and Another vs Exim Bank (Taxation Reference 1 of 2020) [2020] TZHCComD 2042 (25 September 2020) Tanzlii. It is again worth

noting that although the taxing master is enjoined wide power and discretion in determining the taxing costs as it appears to him fit in the interest of justice, the same is obliged to exercise the vested power and discretion within the cost scales prescribed by the law, but also must consider factors such as the greater amount of work involved, the complexity of the case, the time taken at the hearing, including attendance, correspondences, perusal, and the consulted authorities or arguments in determining the payable costs. However, in the matter at hand, the complaint was to the effect that the amount awarded was excessive. The applicant’s advocate contended that the application was not opposed because when the prayer to withdraw the same was leveled, it was not objected; thus, the amount payable was TZS. 500,000/= The Taxing Master treated the withdrawn application as an 6|Page opposed application because the respondent had already filed a counter affidavit. The respondent’s advocate is of the same stand. According to the Eleventh Schedule, titled Costs of Proceedings in the High Court, Subordinate Courts and Tribunals, in particular item 1, which is all about Instruction fees, provides that; “The fee for instruction in the suit shall be as prescribed in these orders: (m) For applications, notices of motion or chamber applications (including appeals from taxation) (i)

Unopposed 500,000/= (ii) Opposed 1,000,000/=” As far as the matter at hand is concerned, since the respondent, upon being served with a chamber application, filed a counter affidavit to contest or oppose the application, the fact which not disputed by the applicant, it is my considered view that the said application does not fall within the meaning of un-opposed application. It is a common understanding that where the respondent is served with a chamber summons by the applicant, and he/she intends to oppose the application, the respondent shall file a Counter affidavit. That is what the respondent 7|Page did in Misc. Application No. No. 26766/2024. The fact that the same was later withdrawn by the applicant without objection does not make it an unopposed application and hence the amount of TZS. 1000,000/= that was awarded as the instruction fee was proper. In view of the foregoing, I find the application for reference devoid of merit, and it is hereby dismissed. Given the nature of the application and the conduct of the parties, I make no order as to costs. It is so ordered. DATED at MWANZA this 28th day of March, 2025. E. L. NGIGWANA

JUDGE 8|Page Delivered this 28th day of March, 2025 in the presence of the applicant in persons, advocate Beatus for the applicant, respondent in person, advocate Katunzi for the respondent and Ms. Jackline Samwel. E. L. NGIGWANA

JUDGE 9|Page