ms sykes travel agent ltd vs araf ally kleist sykes 2021 tzhclandd 261 14 june 2021

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM REFERENCE NO. 11 OF 2020 (Arising from Bill of Costs No. 57 of 2017) M/S SYKES TRAVEL AGENT LTD.... APPLICANT VERSUS ARAF ALLZY KLEIST SYKES......... . RESPONDENT Date of Last Order: 11.05.2021 Date of Ruling: 14,06.2021 RULING V.L. MAKANI. J The applicant named above is asking this court to look into the justifiability, proprietary, correctness and observance of the principles of Taxation of Bill of Costs as regards the decision of the Taxing Master in application for Bill of Costs No. 57 of 2017 dated 05/08/2020. In the said decision, the Taxing Master awarded T2S 11,675,000/= out of TZS 76,145,000/= that was presented by the respondent. The applicant has moved this court under Rule 7(1) and (2) of the Advocates Remuneration Order, GN. No. 264 of 2015 (the Remuneration Order) and any other enabling provision of the law. The application is supported by the affidavit of Abraham Sykes, the Principal Officer of the applicant. In response, Advocate Erick Gebehard Mhimba filed a counter affidavit on behalf of the respondent. With leave of the court the application was argued by way of written submissions. Mr. Henry Kishaluli drew and filed submissions on behalf of the applicant. He adopted the contents of the applicant's affidavit that was filed. He said that the amount of TZS 11,675,000/= is on the higher side, unfounded and unjustifiable. He said that Land Case No. 181 of 2015 ended at a preliminary stage against one of the plaintiffs, blit still the matter continues between the rest of parties and the same claim survived. He said that the award should be on consideration of the work done, the stage reached and reality of the circumstances. He added that the purpose of the bill of costs is to reimburse the applicant for the really costs incurred and not as punishment to the respondent. He said further that the taxed amount is unrealistic and of no basis because the taxation should be explained categorically, and each Item should be observed and finally taxed on or taxed off. He said that the award is Very confusing and does not indicate as to which items were taxed on or taxed off. That it does not show which amount was for instruction fees and which was for attendance, so it leaves doubts to ascertain the instruction for the 2 work done. He added that he has realized that the instruction fees awarded was only TZS 400,000/= and there is nowhere the award of instruction fees was above the amount stated. That the said amount was reached by the Taxing Master as elaborated in page 3 and 4 of the ruling. He reiterated that no amount categorically has stated and has pronounced instruction fees, further the taxation is not certain which item was taxed on and which were taxed off so the applicant does not know how the bill was taxed to the turie of TZS 11,675,000/=. Mr. Kishaluli further stated that as per the records he is of the opinion that the only'items taxed were: Advocate's attendance and transport which was taxed at TZS 1,120,000/=, instruction fees at TZS 400,000/= and disbursement which was not disputed at TZS 155,000/ = . That by calculation the total taxation bill amounts to TZS 1,675,000/=. He said the amount of TZS 11,675,000/= which was taxed is on the higher side and full of uncertainty on how it was arrived at. He said that even TZS 1,120,000/= taxed on transport for attendance is still high as it is known that a litre of petrol covers 10 kilometres and from Victoria Kijitonyarha to Samora Ilala is only 4 kilometres and a litre is TZS 1,980/=. Therefore, for a round trip one 3 should use 10 litres of fuel which was supposed to be taxed at 554,400/= for 28 days. He insisted that the respondent should have shown the amount that was paid to the advocate and there ought to have been an acknowledgement receipt. He said that in this case there is no acknowledgement receipt. He further said that the taxation of instruction fees should have considered that the applicant as the 2nd Plaintiff iri the main case was only struck out at preliminary stage and that the case did not end the claim against the respondent, the same claim is still pending at High Court Land Division therefore the Taxing Master should have considered the circumstances of the case and exercise his powers judicially. He prayed for the application for reference to be allowed. In reply, Mr. Erick said that it is true that Land Case No. 181 of 2018 was struck out at the preliminary stage. He however said that instruction fees are always payable once Counsel is instructed and it does not matter whether the case ended at a preliminary stage or at full trial. He relied on the case of First American Bank of Kenya vs. Shaha and another, EALR (2002) 1 EA 64 where it was stated that instruction fee is an independent and static item not affected by the stage of the suit reached and full instruction was earned the 4 moment a defence was filed and subsequent progress. He said that in the Land Case No. 181/2015 the defence was filed by the respondent and the suit was contested by way of preliminary objection and it was sustained. He therefore said that the Taxing Master had considered the work done by the respondent in defending Land Case No. 181/2015 and the award was not on the higher side as alleged by the applicant. He said that the present reference is not party to the current proceedings in Land Case No. 176 of 2018, that is only initiated by Abraham Sykes against the present Respondent. He insisted that the amount taxed is reasonable. Mr. Erickfurther alleged that the decision by the Taxing Master is not ambiguous as alleged by the applicant. That there is no provision in the Rules which requires the faxing Master to specify amounts awarded on each item. That the Taxing Master used his discretion under Order 12 (1) and 46 of the Remuneration Order in assessing and awarding the said bill of costs. He said that the applicant disregarded the presence of instruction fees whicn was taxed and awarded to the respondent for defending Land Case No. 181/2015. That the taxation is clear and certain as it has included all the necessary fees including instruction fees. He said that the applicant has failed to state which provision of law in the Remuneration Order that the taxing master has contravened. That the ruling by the Taxing Master expressly agreed with the submission by the applicant that the instruction fees claimed by the respondent was on the high side since Land Case No. 181/2015 ended up on preliminary stage and as a result the Taxing Master did not rely on the exact scale in charging the fees but rather used his discretionary powers conferred to him by the law. He insisted that the taxing master gave clear reasons for his decision at page 3 of the ruling. On the receipts, Counsel submitted that the bill of cost is taxed in accordance with the prescribed scale or by discretion power conferred to the Taxing Master under the Remuneration Order therefore it was not necessary for the respondent to prove by receipts that the instruction fees quoted in item No.l of the Bill of Costs No.57 of 2017 was incurred. He relied on the case of Salehe Habib Salehe vs Manjit Gurmukh and Another, Reference No.07 of 2019 (HC- Land Division) (unreported). He said in the plaint (Annexure AAKS- 1) the applicant was claiming sum of USD 50,000/= per each month from the date when they filed Land Case No. 181 of 2015 to the date of judgement He said there is no dispute that the said suit stayed in 6 court for 23 months in which if the judgment could have been delivered against the respondent, then the applicant could be entitled to the total sum of USD 1,150,000/= whereby 3% of the said amount is USD 34,000/= which is equal to TZS 72,000,000/=. On that basis he said that the Taxing Master used his discretionary powers judiciously to assess and reduce the instruction fees far below the exact amount which was supposed to be taxed as per the scale provided for under the 9th schedule to the Remuneration Order for reasons that Land Case No. 181 of 2015 ended in preliminary stage. He insisted that the taxed amount was fair and reasonable. He added further that it is not true that the distance from respondent's Counsel address to Samora Avenue is 4 kilometres but more than 7 kilometres. And that the award of 40,000/= was for attendance and transport cost as confirmed in page 3 of the ruling, hence the amount taxed is fair and reasonable. He prayed for the application for reference filed by the applicant to be dismissed with costs. In rejoinder Mr. Kishaluli reiterated his main submission and added that each case should be decided according to its own circumstances. That the case of First American Bank of Kenya (supra) is distinguishable to this case since the applicant was the only one and if the fees calculated for the defence, it only involves one plaintiff but in this case the defence fees was on two plaintiffs on the same subject matter. He said nothing shows that the instruction fees demanded was only for the applicant, which means in circumstances of this Case the claim is still on with the remaining plaintiff and if so considered then the respondent cannot use the same amount claimed in the plaint twice when the pending suit ends. He insisted that there must be acknowledgement of the payment of instruction fees to show that the same was paid. He prayed for the application for reference to be allowed and the award of costs be set aside with costs. I have gone through the decision of the Taxing Master, and the submissions by the learned advocates for the parties. Clearly, the decision of the Taxing Master is not what we are normally accustomed to, where the amounts taxed on and taxed off are clearly visible, but this does not remove the fact that there were items that were presented and were taxed accordingly. The Taxing Master, as correctly stated by Mr. Kishaluli and not controverted by Mr. Erick, concentrated on four items. That is, advocate's attendance and transport which was taxed atTZS 1,120,000/=, instruction fees at 8 TZS 400,000/= and disbursements which was not disputed at TZS 155,000/=. By calculation this totals to TZS 1,675,000/=. In rriy view, the amount of TZS 1,675,000/= is the proper total calculation according to amounts taxed by the Taxing Master. The amount of TZS 11,675,000/= is in my view an error apparent on the calculation of the amounts taxed. I am inclined to believe that this is a typographical error (there is an additional number 1 to read as 11*675,000/= instead of 1,675,000/=). It is apparent considering the reasoning of the decision of the Taxing Master on record that the intended taxed amount was meant to be TZS 1,675^000/= as opposed to TZS 11,675,000/= that is why it has been difficult to deduct as to how the Taxing Master arrived at 11,675,000/= considering the items and amount taxed. The Taxing Master on instruction fees taxed the amount of TZS 400,000/=, the disbursements were taxed at TZS 155,000/= and transport and attendance was taxed at TZS 1,120,000/=. If these amounts are added, we get TZS 1,675,000/=. Considering the circumstances of the case, I find the amount of TZS 400,000/= taxed as instruction fees to be reasonable as the 9 matter was concluded at the preliminary stage and the suit is still ongoing. The disbursements are not contended, and they remain as taxed at TZS 155,000/=. Mr. Kishaluli was comfortable with the instruction fees and the disbursements but he was still of the view that the taxed amount of TZS 1,120,000/= on transport and attendance was on the higher side. In my considered view the amount is reasonable considering that the matter was pending for 23 months and the fact that the offices of Counsel are out of town. Indeed, the distance may not be far but Mr. Kishaluli ought to remember there are traffic jams in Dar es Salaam and one may use a lot of fuel within a very short distance. So, I will leave the taxed amount as it is. For the reasons above, I find the application to have merit to the extent stated above and it is hereby granted. The taxed amount is therefore reduced to TZS 1,675,000/= (Tanzania Shillings One Million Six Hundred and Seventy-Five Thousand) only. The applicants will also have costs of this application. It is so ordered. JUDGE 14/06/2021 10