Ruling Civil Reference No

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT MOSHI CIVIL REFERENCE NO. 20779 OF 2024 (C/F Bill of Costs No. 49 of 2024. Originating from Application No. 124 of 2023 in the District Land and Housing Tribunal for Moshi at Moshi) NEW TESTAMENT CHURCH TANZANIA………….…….……..APPLICANT VERSUS GODLISTEN MATHEW MASUKI.….………………………….RESPONDENT RULING 26th November & 19th December, 2024 MONGELLA, J. The Applicant lodged Application No. 124 of 2023 (henceforth, the main application) before the District Land and Housing Tribunal for Moshi at Moshi (the Tribunal, hereinafter). Following a preliminary objection on the Applicant’s locus standi, the Application was struck out with costs. Afterwards, the Respondent filed Bill of Costs No. 49 of 2024 (henceforth, Taxation Cause) in the Tribunal claiming a total of TZS. 2,164,000/-. The Taxing Master awarded the Respondent costs amounting to TZS. 1,674,000/-. Aggrieved, the Page 1 of 16 Applicant preferred this Reference requesting for this Court to quash and set aside the Ruling and order of the Taxing officer. The Applicant’s Reference is supported by the affidavit of one, Philip Andrea Kimathi, the Advocate that represented the Applicant in the Taxation Cause. In his affidavit, the Counsel claimed that he was denied the right to be heard; the transport costs of TZS. 600,000/= from Kahe to Moshi and from Moshi to Mwanza were excessive; the general awarded costs were excessive and that, the Taxing Master had taxed off TZS. 490,000/- which was more than one-sixth of the Bill. The Respondent contested the Reference as expressed in his own sworn counter affidavit. The reference was argued orally whereby the Applicant was represented by Mr. Erasto Kamani and the Respondent by Mr. Innocent Msaki who held the brief for Ms. Jackline Makange. Submitting in chief, Mr. Kamani addressed four issues being; one that the ex parte determination of the Bill of Cost was contrary to rules of natural justice and constitutional right provided under Article 13 (6)(a) of the Constitution of the Unted Republic of Tanzania, 1977 as amended. He averred that the natural right infringed requires any authority, court, agency determining any rights and duties to afford parties a fair hearing, which includes the right to appeal or seek remedy against the decision of the court or agency. Referring to the case of Abbas Sherally and Another vs. Abdul Sultan Haji Mohamed Fazalboy (Civil Application No. 133 of Page 2 of 16 2002) [2005] TZCA 105 (17 November 2005) TANZLII; he insisted on the importance of the right to be heard contending that the omission to observe the same bears the effect of nullifying the decision sought even if the same decision would have been reached if the party was afforded such right. Mr. Kamani alleged that the Applicant was denied the right to be heard in the Taxation Cause. That, the matter was mentioned for the first time on 18.04.2024 and on the same date, the Tribunal Chairman ordered the mater to proceed by way of written submissions. Explaining about the schedule in filing the written submissions, he averred that the schedule was for the submission in chief to be filed on or before 02.05.2024; reply on or before 16.05.2024 and; rejoinder, if any, on or before, 23.05.2024. Mr. Kamani contended that the Applicant’s submissions were filed on 02.05.2024 which was way before 16.05.2024. He referred to the Tribunal stamp annexed on the same date of 02.055.2024 arguing that the same serves as proof of the submissions being received on the same date. In the premises, he contended that when the trial Chairman was composing his decision, the submissions were already in the Tribunal file, but he did not make any reference to it instead, he found the Respondent had filed his submissions out of time. Mr. Kamani stressed that the omission to consider the Applicant’s submissions was a violation of her right to be heard and as per Abbas Sherally (supra), the decision is illegal and deserves to be quashed. Page 3 of 16 Two, Mr. Kamani alleged that the Tribunal decision violated the “excessive claim principle” also known as the “one-sixth principle” provided under Order 48 of the Advocates Remuneration Order, 2015. He contended that the provision provides that where more that, one-sixth of the bill of costs exclusive of court fees is disallowed, the party presenting the bill of costs shall not be entitled to costs of such taxation. He cemented this argument with the case of Bahdela Co Ltd vs. Petrofuel (T) Ltd (Commercial Reference 12 of 2022) 2023 TZHCComD 114 (23 March 2023) TANZLII. Driving the point home, he argued that in the matter at hand, the respondent had presented a bill of costs summing up to TZS. 2,164,000/-. That, the Taxing officer disallowed TZS. 490,000/- which is more than one- sixth of the presented Bill. In such circumstances, he had the stance that the Respondent should have not been granted any costs, however, the Tribunal Chairman proceeded to award him TZS. 1,674,000/- contrary to the legal requirement. Three, that the Taxing Master awarded TZS. 600,000/- as transport costs for the Respondent from Kahe to Moshi town for 4 days without proof. Contesting this award, Mr. Kamani averred that the public bus “daladala” fare for this route does not exceed TZS. 1,000/- and in case it is more than this value it will not be above TZS. 5,000/- thus the total should have not been above TZS, 20,000/-. He further contended that even if the Respondent had used a motor vehicle make Prado, the value could not have reached TZS. 600,000/-. He considered the value excessive considering that the matter was finalized through preliminary objection. Page 4 of 16 Four, that, the Tribunal decision violated the provisions of Order 12(2) of the Advocates Remunerations Order as it awarded the Respondent TZS. 300,000- as travelling costs to Mwanza to seek advice from an advocate in relation to the main application. On this, Mr. Kamani was of the view that the traveling expenses incurred by the Respondent to seek legal advice in Mwanza were incurred negligently. He argued so, on the ground that the Respondent had no reason to seek advice from an advocate in Mwanza while there are many advocates here in Moshi. He further averred that even if the said Advocate was very competent, considering advancement in communication technology, the Respondent could have communicated with him vide phone call and even send him relevant documents via emails as is done on cases where the customer resides far away. In addition, he challenged the award on the ground that there was no proof that the Respondent travelled to Mwanza to seek the said advice as no receipt was presented. On the other hand, talking about the usual travel expenses to Mwanza, he contended that even if the Respondent had indeed gone to Mwanza, the bus fare for a round trip to Mwanza is TZS. 90,000/-. Mr. Kamani finalized his submissions by praying for the Taxing Master decision to be quashed and for the Applicant to be accorded the right to be heard. He further prayed for the matter be heard before a different Chairman for the sake of justice. Page 5 of 16 In reply to the 1st issue, Mr. Msaki challenged the allegation terming it as false. Arguing that court orders must be obeyed, he referred the Court to the case of East Africa Development Bank vs. Naura Spring Hotel Limited & 4 others (Misc. Commercial Application No. 33 of 2023) [2023] TZHCComD 145 (2 June 2023) TANZLII. Speaking on what transpired at the Tribunal, he contended that the Applicant was accorded the right to be heard in the Taxation Cause whereby she was given 14 days from 02.05.2024 to 16.05.2024 to file her reply submissions. Instead, he said, the Applicant the same on 22.05.2024 without leave to do so. In those bases, he stressed on his stance that the allegation that the submissions were filed on 02.05.2024 were incorrect. He explained that what was filed on the said date of 02.05.2024 was the Applicant’s reply to the Bill of Costs and not reply submissions. Referring to Article 30 (1) of the Constitution, Mr. Msaki averred that the rights and freedoms of parties should not interfere with rights and freedoms of other persons. He contended that the Applicant infringed his own right to be heard and even after doing so, he did not apply for leave to file his submissions out of time. He alleged that the Applicant was employing delaying tactics in paying the Respondent. He cemented his averments with the case of Aslam Akbar Khan (Administrator of the Estate of The Late Gulfiroz Begum) vs Ashraf Akbar Khan and 2 Others (Misc Land Application 47 of 2022) 2023 TZHC 17284 (16 May 2023) TAZNLII, averring that litigation must come to an end. Concluding on this point, he found the Page 6 of 16 Applicant’s claim for the matter to be heard afresh being against the law and leading to creation of backlog for no reason. Addressing the 2nd issue, Mr. Msaki alleged that the guidelines to be observed in awarding costs as provided in Wambura Chacha vs. Samson Chorwa [1973] LRT 4 were all observed in relation to the main application. That, all costs awarded by the Taxing officer were in accordance with Order 12(2) of the Advocates Remuneration Order as evident in the Tribunal Ruling. In his view, the amount awarded was low considering that instruction fees ought to have been not less than TZS. 1,000,000/- as per Oder 46 of the Advocates Remuneration Order. Referring to the case of Tanzania Rent a Car Limited vs. Peter Kimuhu, (Civil Reference No. 09 of 2020) [2021] TZCA 103 (06 April 2021) TANZLII, he contended that there is no need of proof in instruction fees. Addressing the provisions of Order 48 of the Advocates remuneration Order, he contended that the same do not provide for denial of court fees at all, but that the award deducted is the one that should not be paid. He had the stance that it would be unconstitutional for the Respondent not to be paid anything. With regard to the 3rd issue on award of TZS. 600,000/- as transport costs from Kahe to Moshi, Mr. Msaki alleged that the Taxing officer explained how he arrived to the said sum. He challenged the Applicant saying that if he is disputing the amount, he ought to have framed his claim to the Eighth Schedule-Item No. 23 of the Page 7 of 16 Advocates Remuneration Order, which provides the amount a person can be re-imbursed as costs for attending the court and other expenses. Concerning the complaint on the award of TZS. 300,000/-, Mr. Masaki vehemently disputed the assertion that amount was incurred negligently. He averred that each party has the freedom to choose the means he pleases to use and to invoke the services of any lawyer he chooses. He therefore prayed for the costs to be maintained as they were rightly awarded in terms of Order 12 of the Advocates Remuneration Order. To bolster his point, he cited the case of Trace Associates Limited & Others vs. Rosemary Tryphone (Taxation Reference No. 9 of 2023) [2023] TZHCComD 337 (13 October 2023) TANZLII. Mr. Msaki concluded his submissions by insisting that the costs awarded were duly incurred and must be given weight in this Reference. As to the right to be heard, he insisted that it was the Applicant that denied himself the said right. Rejoining, on the 1st issue, Mr. Kamani reiterated his point that the Applicant was denied the right to be heard. He insisted that the Applicant filed her reply submission on 02.05.2024 and the same was a reply submission and not a reply to the Bill of Costs. In those bases, he found Mr. Msaki had misdirected himself. In his view, in whatever appearance the document filed on 02.05.2024 looked like, it was a reply submission. Page 8 of 16 He further stressed on his point that the trial Chairman never considered the document filed on 02.05.2024. He alleged that the circumstances would have been different had the Tribunal Chairman considered the document filed and thereafter state that it was unfit to be called a submission. On the other hand, he admitted that there was indeed another document filed at the Tribunal by the Applicant after the reply filed on 02.05.2024. Concluding on this issue, he challenged the cited authorities for being irrelevant as they refer to a party that has not exercised his right to be heard after being accorded the said opportunity. Rejoining on the 2nd issue, Mr. Kamani contended that there was nowhere that Mr. Msaki denied that one-sixth of the Bill of Costs had been disallowed. Instead, he said, he advanced another argument as to factors considered in awarding the costs. In the premises, he reiterated his stance that since one-sixth of the Bill had been disallowed then the Respondent was not entitled to any costs. He cemented his averment once again with case of Bahdela (supra). Arguing further, he contended that the Applicant does not dispute that more than one-sixth was taxed off, only that instruction fees were not excluded as required in the proviso to the said provision. However, with respect to instruction fees, he contended that since an advocate had not been engaged, instruction fees cannot be used to compute costs as per the provision. As to the 3rd issue, he insisted that transport costs of TZS. 600,000/- were excessive and not proved. He countered that the Eighth Schedule to the Advocates Remuneration Order had no bearing on Page 9 of 16 costs on contentious matters. Specifically, he referred to Oder 41 of the Advocates Remuneration Order in support of his averment. Addressing the award of TZS. 300,000/- as transport expenses to seek legal advice, he insisted that the same was an act of negligence. He reiterated that technology should have been used to communicate with the alleged counsel. Finalising his submissions he prayed for the Tribunal decision to be quashed for being bad in law and for the matter to be remitted for re-trial. I have considered the submissions by both parties as well as record of the Tribunal. My deliberations shall be confined to the four issues raised by the Applicant’s Counsel. Under the 1st issue, it is alleged that the applicant was denied the right to be heard as the Tribunal Chairman determined the Taxation Cause without paying regard to her submissions. While Mr. Kamani insisted that the submissions were filed on the scheduled date of 02.05.2024, Mr. Msaki, on the other hand, opposed the averment contending that the Applicant failed to comply with the fixed schedule as he filed his reply submissions on 22.05.2024. He thus found the Tribunal being right in determining the Taxation Cause ex parte. Upon observing the Tribunal record, I found that indeed the Applicant had filed his reply submission on 22.05.2024 contrary to the fixed schedule that required her to file the same from 02.05.2024 to 16.05.2024. Mr. Kamana alleged that the Reply to the Reference Page 10 of 16 was the actual submission for being on 02.05.2024. I find this argument misplaced. The record shows that when the Tribunal fixed the schedule for submissions to be filed, the Applicant was well present through one, Bishop Emmanuel Msangi. This renders him well aware of the schedule. In fact, Mr. Msangi had agreed to the request by the Respondent for the matter to be resolved by written submissions. In the premises, I find it questionable as to how the Applicant proceeded to file an entirely different document “a Reply to Bill of Costs” without requesting for leave from the Tribunal to do so. Thereafter, the Applicant proceeded to file her reply submissions on 22.05.2024; a fact well witnessed by the Tribunal stamp annexed on the document. In the premises, it is baffling that, if the document filed on 02.05.2024 served as a reply submission, then why did the Applicant go to lengths to file an entire document out of time and without leave of Tribunal? Further, Mr. Kamani faulted the Tribunal Chairman for not considering the filed “Reply to Bill of Costs” averring that he should have at least considered the same and ruled out on whether the document was not the intended document. While indeed the trial Chairman did not pay heed to the “Reply to Bill of Costs” filed on the date scheduled for filing of reply submissions, in the circumstances, I find the omission justified. The Applicant never sought for leave to file this document since it was not what was ordered to be filed in the first place. Page 11 of 16 Further, despite the Respondent having raised the concern as to the Applicant not having filed the submissions on time, she made no effort to request for extension of time to file the same out of time. In the circumstances, I agree with Mr. Msaki that the Applicant slept on his right. She was not denied the right to be heard, but gave it up. This claim is therefore found to lack merit. Moving on to the 2nd issue regarding one-sixth of the Bill being disallowed. The one-sixth rule is well enshrined under Oder 48 of the Advocates Remuneration Oder, 2015, which states: “48. When more than one-sixth of the total amount of a bill of costs exclusive of court fees is disallowed, the party presenting the bill for taxation shall not be entitled to the costs of such taxation: Provided that, at the discretion of the taxing officer any instruction fee claimed, may be disregarded in the computation of the amount taxed of that fee in the computation of the one-sixth.” As seen above, the Order specifically states that where the Taxing master disallows one-sixth of the costs save for court fees and at his discretion, instruction fees; then the claiming party would not be entitled to the costs for taxation. I find that the law intended that court fees and instruction fees where an advocate is engaged, are to be excluded in the computation. Discussing in detail the exclusions provided in the Order, this Court in Mohamed Builders Ltd vs. Lake Steel and Allied Products Ltd. (Commercial Reference 6 of 2022) 2022 TZHCComD 340 (21 October 2022) TANZLII, stated: Page 12 of 16 “…there is no dispute that the purpose of Order 48 is to deter any decree holder from using bill of costs to enrich himself or herself out of what is allowed by law and reimburse what he had used lawful in prosecuting or defending the case. The consequences are to other amounts which are taxed at the discretion of the Taxing Officer and not to disbursements and instruction fees where an advocate was engaged at a fee. Other interpretation outside the above stance, in my own string opinion is not what the drafters of the law intended.” In the matter at hand, the Respondent claimed a total of TZS. 2,130,000/- save for Tribunal fees. If fees for the WSD and for preparing the Bill of Costs are deducted the amount claimed becomes TZS. 1,520,000/-. Save for fees, costs for filing the WSD, the Bill of Costs and for taxation awarded at the discretion of the taxing master totalled at TZS. 1,024,000/-. This means the disallowed costs were TZS. 496,000/-. One-sixth of TZS. 1,520,000/- is 253,333.33/-. This shows that the disallowed costs did not exceed the one-sixth required under Oder 48 of the Advocates Remuneration Order as claimed by Mr. Kamani. The awarded costs for taxation are thus retained. With respect to the 3rd issue concerning the award of TZS. 600,000/- for transport costs; I have observed the record of the Taxation Cause as well as the main application. It appears that the said TZS. 600,000/- was taxed for the Respondent’s attendance to sessions on six diverse dates being: 29.11.2023; 20.12.2023; 11.02.2024; 05.02.2024; 09.02.2024 and 01.03.2024, each being billed at TZS.100,000/-. All these attendances involved the Respondent Page 13 of 16 leaving his home at Njoro- Moshi, which was his address as per the Applicant’s application filed at the Tribunal and never contested by the Respondent. The taxed amount also involved costs for food. For some reason however, the Respondent’s residence is said to be at Kahe, which again is within Moshi. Save for the other dates in which transport and food claim was TZS. 150,000/-, the date of 29.11.2023 which was on attending the first mention, was billed at TZS. 20,000/-. It is thus questionable as to how the attendance for mention was billed TZS. 20,000/- while a simple addition of a meal in the other dates save for 09.02.2024 on filing a letter to collect judgement, was charged at TZS. 150,000/-. I find it incorrect for the Taxing Master to proceed awarding TZS. 100,000/- for attendance and meals for all the six items even though the Respondent’s claim of TZS. 20,000/- for the attendance on 29.11.2023 and 09.02.2024 did not involve a meal. In addition, I found no letter requesting for copies, with respect to the main application, ever filed at the Tribunal on 09.02.2024. In further observation, the respondent never stated the means of transport he employed. Such fact is even missing in his submissions on the Taxation Cause. The reasonable transport costs should have at least been TZS. 10,000/- considering that his residence is within Moshi. As for lunch, I am of the view that TZS. 15,000/- is more than reasonable. In foregoing observation, I hereby restructure the taxed amounts in the items as follows; Item 3, the bill for attending the mention on Page 14 of 16 29.11.2023 is reduced to TZS. 10,000/; in Items 4, 5, 6, the bill for transport and food for 20.12.2023, 11.01.2023 and 11.01.2024 is reduced to TZS. 25,000/- for each item. Under Item 7 for filing the letter to collect judgement on 09.02.2024 is taxed off for want of proof. Item 8 as costs for food and transport to collect judgement, I find it reasonable to award transport costs alone and thus I reduce the amount to TZS.10,000/- The total Bill in the items mentioned herein, under this 3rd issue, is thus reduced to TZS. 95,000/-. The 4th issue pertains award of TZS. 300,000/= awarded to the respondent in items 1 and 9 for transport and accommodation to consult an Advocate in Mwanza. I as well find this a rather strange expense on part of the Respondent. Both, the WDS and the Bill of Costs appear to have been filed by one Ms. Jackline Julius Makange, whose address indicates being based in Mwanza. However, upon observing the Respondent’s WSD and the Bill of Costs, the Advocate’s stamp, which is an electronic stamp, reads the Advocate’s address as being Kilimanjaro region. While receipts may be unnecessary in some cases, in this strange occasion of seeking legal services on far lands, I find receipts should have been at least be produced. In the absence of such receipts and in consideration of the contradiction as to the Advocate’s address herein, I find the situation an enough reason to tax off this entire cost. Thus, the two items challenged under this issue are hereby taxed off. Page 15 of 16 With regard to the costs for preparing the WSD and the Bill, as well as, for the Tribunal fees and disbursements, I find these were not challenged thus I retain the taxed amount. In the upshot, the Respondent’s costs are taxed as follows: Items 3, 4, 5, 6 and 8 are taxed at TZS. 95,000/; item 2 on fee to preparing the WSD and item 10 on fee for preparing the Bill of Costs are sustained for the amount of TZS. 150,000/- and TZS. 200,000/- respectively; Item 11 on costs for attendance to the Tribunal to file the Bill of Costs is reduced to TZS. 10,000/- as per the explanation offered in discussing the reduction in item 8; taxation costs are retained at TZS. 300,000/- and disbursements at TZS. 34,000/-. The total taxed amount is therefore TZS. 789,000/-. The Reference is thus allowed to such extent. Each party to bear his/her own costs for the Reference. Dated and delivered at Moshi on this 19th day of December, 2024. X L. M. MONGELLA JUDGE Signed by: L. M. MONGELLA Page 16 of 16