mess rs maira another vs dar es salaam city council 2006 tzhc 154 23 august 2006

IN THE HIGH COURT OF TANZANIA AT PAR ES SALAAM MISC. CIVIL CAUSE NO. 87 OF 2005 MESS RS MAIRA & CO. ADVOCATES___APPLICANT VERSUS THE DAR ES SALAAM CITY COUNCIL .. RESPONDENT Date o f last order -17/7/2006 Date o f Ruling - 23/8/2006 RULING Shanawa. J. On 25th May, 2005, Messrs Maira and Company; Advocates filed an application which was registered as Miscellaneous Civil Application No. 87 of 2005 seeking for an order that their Bill of Costs delivered to the respondent on the 9th day of May, 2005 be taxed by the Taxing Officer and for orders ~ that no action should be commenced thereon until the taxation is completed and that costs for the application and the taxation be provided for. On 22nd August, 2006, the respondent, Dar es Salaam City Council filed a notice of preliminary objection against the applicant's application on grounds that it is incompetent and improperly before the Court as there is an underlying agreement. The preliminary objection was argued by way of written submissions which were presented by the parties' Advocates. Their submissions were lengthy and full of details. In order to save the court's time, I will not go deep into those details. In brief , learned counsel for the respondent Mr. Tasinga submitted that the application for taxing the applicant's Bill of Costs delivered to the respondent on 9th May, 2005 is incompetent because there is a written agreement between the parties in which both of them agreed on the amount to be paid by the respondent to the applicant for his legal services in Civil Case No. 186 of 2003 Wilson C. Mmukama Vs. Oswald Rutaihwa and two others in the event that the said case proceeded to full hearing. That is shs.36,000,000/=. He contended that in view of the fact that there is such an agreement, the applicant's application is contrary to procedure. He said that under that agreement, the applicant is disqualified from obtaining the full amount of shs.36,000,000/= as the case did not proceed to full hearing. He prayed the court to dismiss the application with costs for lack of merit. In reply, learned counsel for the applicant Mr. Moses Maira submitted that the application in issue was filed in accordance with the law and procedure. In support of his submission, he referred the court to Section 62 (1) of the Advocates Act Cap. 371 R.E. 2002 which provides as follows and I quote: "On the application made within one month o f the delivery o f an advocate's bill, of the party chargeable therewith, the High Court shall, without, requiring any sums to be paid into court, order that the bill shall be taxed and no action shall be commenced thereon until the taxation is completed." Mr. Moses Maira contended that the respondent's preliminary objection is misconceived as there are no preliminary matters which need to be dealt with before disposing of the application such as lack of jurisdiction to entertain the same or a plea of Limitation. He said that the question as to whether he is entitled to the full amount of shs.36,000,000/= as legal fees upon full hearing is not a question that can be argued as a preliminary objection. He said that such a question has to be raised and argued before the Taxing Officer in case the orders sought in his application are granted. He urged the court to hold that his application is competent and to direct that the bill of costs which he delivered to the respondent on 9th May, 2005 should be taxed by the Taxing Officer according to law. He prayed the Court to dismiss the respondent's preliminary objection with costs. The question to be determined in this matter is whether or not the application filed by the applicant in this court for an order that the applicant's Bill of Costs delivered to the respondent on 9th May, 2005 be taxed by the Taxing Officer is incompetent due to the underlying agreement between the parties. In my opinion, Miscellaneous Civil Application No. 87 of 2005 which was filed by the applicant is competent. It is supported by affidavit of the applicant in accordance with Order XLIII Rule 2 of the Civil Procedure Code Cap. 33 R.E. 2002. It was properly brought under Section 62 (1) of the Advocates Act Cap. 371 - R.E. 2002 which confers power to this court to grant the orders sought by the applicant. In actual fact, there is no rule of law be it procedural or substantive which prohibits an advocate to apply for an order of taxation of his Bill of Costs where there is an agreement between him and his client as to how much he should be paid by his client for his legal services. I hold therefore that the underlying agreement between the parties in this case does not render the application incompetent. Indeed, the question as to whether or not the applicant is entitled to shs.36,000,000/= for his legal services to the respondent is a matter that has to be dealt with by the Taxing Officer before whom it should be raised by the respondent in case the applicant continues to insist that he is entitled to that amount irrespective of whether or not Civil Case No. 186 of 2006 went to full litigation. For these reasons, I overrule the respondent's preliminary objection with costs. In order to shorten things, I hereby direct that the applicant's Bill of Costs delivered to the respondent on 9th May, 2005 be taxed by the Taxing Officer and no action should be commenced thereon until the taxation is completed. I also order that costs of taxation should be provided for and what is due to or from the applicant in respect of the Bill and in respect of the Costs of the taxation should be certified by the Taxing Officer. I so order under Section 62 (1) and (3) of the Advocate's Act Cap. 371. /V -v ---- & r T 5 ^ ' ST‘ A. Shangwa E Ht JUDGE 23/8/2006 ien court this 23rd day of August, 2006. Ao-V-—-fes—7 ^ A. Shangwa JUDGE 23/8/2006