CIVIL REFERENCE NO

IN THE HIGH COURT OF TANZANIA (DAR ES SALAAM SUB-REGISTRY) AT DAR ES SALAAM REFERENCE NO. 19 OF 2023 (Arising from Taxation Cause No. 85 of 2023) MAXINSURE TANZANIA LTD ……………….……………………….… PLAINTIFF VERSUS AMBASSADOR SECONDARY SCHOOL………………………………1ST DEFENDANT RULING 02nd May & 28th June, 2024 BWEGOGE, J.: The applicant herein has instituted a reference in this court under Order 7(1) and 7(2) of the Advocates Remuneration Order [G.N. No. 263 of 2015] praying for orders, among others, as hereunder: 1 1. That this court be pleased to interfere with the proceedings, decision and ruling of the taxing officer which disallowed the applicant’s bill of costs without justifiable cause in Taxation cause No. 85 of 2023. 2. That this court be pleased to make an order that the bill of costs was properly presented by the applicant before the taxing officer within the guideline and best practice regulating bill of costs. 3. That his court be pleased to make an order that the bill of costs be taxed as presented by the applicant. The factual background of this matter may be recapitulated thus: The respondent herein commenced civil proceedings against the applicant claiming a total of TZS 376, 664,804.9 /= being compensation for fire accident which seriously damaged her properties which were insured by the applicant herein. Unfortunately, before the matter was heard on merit, the applicant advanced a preliminary objection in that the respondent being not the corporate body with power to sue or be sued, had no locus standi to commence the proceedings against the applicant in this court. Indeed, the objection was unanswerable on part of the respondent. Eventually, the suit collapsed for being incompetent before the court. 2 Consequent to above, the applicant lodged an application for bill of costs amounting to TZS. 45, 566, 536, 343/= being litigation expenses incurred in defending the incompetent suit commenced by the respondent. The taxing master found that the bill of costs, specifically instruction fees, was at high side contrary to the provisions of the 11th schedule to the G.N. No. 263 of 2015. Hence, found that, as one sixth of the total amount of a bill of costs exclusive of court fees was not allowable, the applicant was not entitled to costs of such taxation in terms of the order 48 of the G.N. No. 263 of 2015. The taxing master ended granting TZS 300,000/= only as disbursement fees. The applicant was aggrieved. Hence, this application. The matter herein was heard exparte following the efforts to procure the attendance of the respondent proved futile. The applicant had the services of Messrs Ngasa Ganja and Emmanuel Hando, learned advocates, who preferred to file written submission in support of the application herein. In substance, Mr hando argued that the law is settled to the effect that application for reference is the discretionary remedy which serves as an equitable relief that intends to insulate the Applicant against possible irreparable injury made by the taxing officer. That he is mindful of the legal position of the law that the taxation process is the discretionary power of 3 the taxing officer and thus such discretion has to be exercised judicially after considering two key factors such as namely; the quantum of the suit involved and the complexity of the matter. That the decisions in the cases of Premchand Raichand Ltd & Another vs. Quarry Services of East Africa Ltd & Others (No. 3) [1972]1 EA 162; The Cashewnut Industry Development Fund vs Cashewnut Board of Tanzania (Civil Reference 4 of 2006) [2009] TZCA 57 and Tanzania Rent A Car Limited vs. Peter Kimuti (Civil Reference 09 of 2020) [2021] TZCA 103 emphasize that the successive litigant is supposed to be fairly reimbursed for costs he reasonably incurred. In tandem with the above, the counsel argued that it has been demonstrated by the applicant in the supporting affidavit that the bill of costs was presented in accordance with the rules regulating the bill of costs. That the bill of costs was made in Civil Case No. 93 of 2018 and not the application for the bill of costs. That under paragraphs 5 (iii) and (iv) of the affidavit the applicant demonstrated that the instruction fees for the suit involving a claim of TZS 376,664,805/= is 3% to 7% of the claimed amount; and thus, the amount claimed was well within the prescribed scale taking into account complexity of the suit and years spent in court litigation. 4 The counsel alleged that the taxing officer admitted that the application for the bill of costs arose from Civil Case No. 93 of 2018 but wrongly held that the instruction fees payable are covered under the 11th Schedule to G.N. No.263 of 2015, which essentially deals with bill of costs arising from the applications. Hence, the taxing officer erroneously concluded that the instruction fee payable is TZS 1,000,000/. The counsel asserted that the taxing officer premised her decision on the ground that the suit was not heard on merits which is a pure misconception as the suit was heard on merits before it was struck ought for reason of being incompetent before the court. That for the period of pendency of the suit, researches were done both for the main suit and the objection proceedings. Hence, the applicant was required to be fairly reimbursed for the costs he reasonably incurred. That in the case of Ndovu Adventure Ltd vs. Elibariki Lorry, Taxation Reference No.6 of 2021, HC (unreported) this court held that “even if it was excessive and there was no hearing of the suit, still the decree-holder is entitled to be fairly reimbursed for the costs he reasonably incurred.” Hence, he prayed that based on the circumstances of the case herein the amount claimed is justifiable. 5 Moreso, the counsel charged that it was indeed unfair and unjustifiable for the taxing officer to award a sum of TZS 300,000/= only to the applicant for the whole period the suit was litigated. That as the main suit and objection proceedings were heard on merits; then he prayed this court to grant the application with costs by taxing the bill as presented. The question before this court is whether the reference herein is merited. Having anxiously attended the submissions made by the applicant’s counsel herein, I find it pertinent to revisit the guiding principles as follows: First, as rightly admitted by the counsel herein it is trite law that the award of instruction fees is peculiarly within the discretion of a taxing officer. And the court will always be reluctant to interfere with his decision unless it is proved that the taxing officer exercised his discretion injudiciously or has acted upon a wrong principle or implied wrong consideration. See in this respect the cases; Tanzania Rent a Car Limited vs Peter Kimuhu (supra); The Attorney General vs. Amos Shavu, Taxation Reference No. 02 of 2000, CA (supra); The East African Development Bank vs. Blue Line Enterprises, Civil Reference No. 12 of 2006, CA (unreported); Haji Athuman Issa vs. Rweitama Mutatu [1999] TLR 372 HC; and 6 Premchand Raichand Ltd & Another vs. Quarry Services of East Africa Ltd & Others (supra). Secondly, although the taxing master is enjoined with wide power and discretion in determining the taxing costs; the same is obliged to exercise the vested power and discretion within the cost scales prescribed by the law. Likewise, the same is required to 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. See the cases; Hotel Travertine Ltd vs. National Bank of Commerce, Taxation Civil Reference No. 9 of 2006; Tanzania Rent a Car Limited vs. Peter Kimuhu (supra)]. Thirdly, the instruction fee is supposed to compensate an advocate adequately for the work done in the preparation and conduct of a case and not to enrich him [Tanzania Rent a Car Limited vs. Peter Kimuhu (supra]. Equally, the costs should not be disproportionate or repressive, but only such charges which are necessary for the conduct of the case. See the cases; Hasham Alibhai Kaderbhai (1938) 1 TLR 676; Khatijabai Jiwa Hashim vs. Zainabu Daughter of Chamdu Nansi 7 (1957) E.A. 257 and Premchand Raichand Ltd & Another vs. Quarry Services of East Africa Ltd & Others (supra). Specifically, in the case of It was opined that: “………as a taxing officer, I have a duty to the public to see that the costs do not arise above reasonable level.” Having revisited the above-mentioned guiding principles, I would revert to the case herein. Unarguably, the applicant claimed for instruction fee to the tune of TZS 45, 566,536,343/= under the justification that the suit involved the claim of TZS 376,664, 804. 9 /= being the compensation sought against the applicant as well as the purported complexity of matter which involved too much research both in main litigation and objection proceedings which resulted into striking out of the case. Further, it is the applicant’s counsel argument that the instruction fees for the suit involving a claim of TZS 376,664,805/= is 3% to 7% of the claimed amount and thus the amount claimed was well within the prescribed scale taking into account complexity of the suit and years spent in court litigation. And it is common ground that the applicant herein prayed for TZS 10,000,000/= being instruction fee for instituting taxation proceedings. 8 As I said earlier, the justification for prayed colossal amount of TZS 45,566, 536. 343/= as instruction fee for defending the applicant in the main suit was pegged on the principal sum claimed by the respondent which is purported to be within 3% to 7% as per the 9th schedule to the G.N. N. 263 of 2015; thus, the amount claimed was well within the prescribed scale. With due respect, the scale mentioned above, in my opinion, was intended for the plaintiff who claims for the payment of the amount prescribed thereof against the defendant. Hence, the scale, in itself, doesn’t give right to the defence counsel to charge the defendant strictly within the prescribed rate. I am alive with the rule of law in that that the successful litigant ought to be fairly reimbursed for the costs he reasonably incurred. However, honestly, I likewise, find the colossal amount claimed as instruction fees to be unreasonably at the high side. Equally, I am alive that the suit commenced by the respondent herein in this court is categorised as contentious proceedings under orders 41 and 42 of the G.N. 263 of 2015. However, I refuse to purchase the argument that the colossal amount claimed tallies with the complexity of the matter and, or research involved. I need not reiterate that the main suit from which the taxation proceedings emanated was concluded on technical ground consequent to the objection on point of 9 law taken by the applicant herein, notwithstanding the fact that it was partly heard. As I stated earlier, the claimed amount as instruction fee, as I apprehend, was inflated. I need not mention that it is incomprehensive that the applicant herein would claim for TZS 10.000, 000/= as fees for instituting the taxation proceedings. As I highlighted earlier, it is the trite law that the instruction fee is supposed to compensate the advocate adequately for the work done in the preparation and conduct of a case and not to enrich him [Tanzania Rent a Car Limited vs. Peter Kimuhu (supra]. Similarly, it is trite law that the costs should not be disproportionate or repressive, but only such charges which are necessary for the conduct of the case [Hasham Alibhai Kaderbhai (supra)]. And I find it pertinent to reiterate that although the taxing master is enjoined with wide power and discretion in determining the taxing costs; the same is obliged to exercise the vested power and discretion within the cost scales prescribed by the law. In rejecting the prayed instruction fees mentioned above, the taxing master invoked the provisions of order 48 of the G.N. 263 of 2015 which provides viz: “When more than one-sixth of the total amount of a bill of costs exclusive of court fees is disallowed, the party 10 presenting the bill for taxation shall not be entitled to the costs of such taxation......” Having anxiously considered the submission made by the applicant’s counsel herein and the circumstances of this case generally, I find no cogent ground to arrive to the conclusion that the taxing officer exercised her discretion injudiciously or has acted upon a wrong principle or implied wrong consideration. Thus, I would not fault the same. Given the foregoing, I would find the reference herein bereft of merit; accordingly, the reference is hereby dismissed in its entirety. The taxation order entered by the taxing master is hereby upheld. So ordered. DATED at DAR ES SALAAM this 12th July, 2024. O. F. BWEGOGE JUDGE 11