RULING NICOLOUS MWAKYOMA final

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA AT MBEYA CIVIL REFERENCE NO. 11477 OF 2024 CASE REFERENCE NO. 202405201000011477 NICOLOUS MWAKYOMA (as Administrator of the Estate of the Late ARON LUKA MWASABILO) ........................... APPLICANT VERSUS AMANYISYE LUKAS MWASABILO .....................................1ST RESPONDENT MAGNALENA SANTENDE ..................................................2ND RESPONDENT TABEAH SANTENDE ..........................................................3RD RESPONDENT RULING Date of hearing: 25/9/2024 Date of ruling: 7/11/2024 NONGWA, J. The applicant has filed this reference to challenge taxation proceedings before the District Land and Housing Tribunal for Rungwe at Tukuyu in Bill of Costs No. 4 of 2024. It is alleged that the taxing officer taxed the amount of TZS 2,892,352,000/= which was not proved by production of relevant receipts. Thus, wants this court to intervene. The respondents oppose the application through the separate counter affidavit they have filed. 1 When the matter came on for hearing the applicant appeared in person whereas the respondents were represented by Mr. Kelvin Kuboja, learned counsel. It was agreed that the application be disposed by filing written submissions, dutifully parties complied with the scheduling order. In his submission the applicant has submitted that the respondents did not produce receipts of costs incurred as required by the law. He cited the case of Prof. Emmanuel A. Mjema v Managing Editor Dira ya Mtanzania Newspaper and 2 Others, Ref. No. 7 of 2017 HCT at Dar es Salaam (unreported) and Alfayo Tingisha vs Simon Laanyuni, Misc. Civil Application No. 47 of 1998, HC Arusha (Unreported) in which it was stated to prove bill of costs the decree holder has to attach proof of the amount claimed. The applicant has submitted that he is just fighting to protect estates of the deceased and dispute over ownership has not been determined. Further that purpose of bill of costs is to reimburse the decree holder and not punish the judgment debtor. The court was referred to the case of Rahim Hasham vs Alibhai Kaderbhai (1938)1 TLR R. 676. From the submission made, the applicant prayed the application to be allowed. Responding, Mr. Kuboja submitted that taxation proceedings are governed by principles under the provisions of the Advocate Remuneration Order, 2015 particularly rule 46. 2 On production of receipts, it was argued that production of proof in taxation proceedings is not necessary and mandatory. He supported the argument with the case of Tanzania Rent A Car Limited vs Peter Kimuhu, Civil Reference No. 9 of 2020 [2021] TZCA 103 (6 April 2021; TanzLII). Counsel argued that in Land Application No. 6 of 2021 and Misc. Land Application No. 19 of 2022 the respondents were represented by advocate which obviously involves payment of fee. He contended that the taxing officer acted under item 1(k) of the Eleventh Schedule of the Advocate Remuneration Order, 2015, G.N. 263 of 2015 (G.N. No. 263 of 2015) to award TZS 2,000,000/= as instruction fee for two respondents. On attendance costs it was submitted that it was taxed in accordance with the law which provided TZS 50,000/= for fifteen minutes. Further that the claimed amount was not excessive. Having considered the application document and rival argument, the only issue for my determination is whether the application is meritorious. Currently, manner of presenting bill of costs, rates, scales and all matter pertaining to bill of costs are governed by the Advocate Remuneration Order, 2015 which came in force on 17th July, 2015 through G.N. No. 263 of 2015. For purpose of contentious proceedings, the law imposes the duty to charge at the rate prescribed under nineth to twelve schedules. The rule prescribes instruction fees on liquidated amount, appeal, application, attendance, service, per folio, and others. 3 Taxation of instruction fees is within the discretion of the taxing officer by having regard to the care and labour required, the number and length of the papers to be perused, the nature or importance of the matter, amount or value of the subject matter involved, interests of the parties, complexity of the matter and all other circumstances of the case as it may be fair and reasonable. Further the taxing officer has to take into account taxation principle which was stated in the case of Premchand Raichand Ltd and Another vs Quarry Services of East Africa Ltd and others (No. 3) [1972] 1 E.A. 162, it includes first, that costs shall not be allowed to rise to such a level as to confine access to the courts to only the wealthy; secondly, that the successful litigant ought to be fairly reimbursed for the costs he reasonably incurred; thirdly, the general level of the remuneration of advocates must be such as to attract worthy recruits to an honourable profession; and, fourthly, that there must, so far as is practicable, be consistency in the awards made, both to do justice between one person and another and so that a person contemplating litigation can be advised by his advocate very approximately what, for the kind of case contemplated, is likely to be his potential liability for costs. The principles have been followed in Kitinda Kimaro vs Anthony Ngoo & Another, Civil Application No. 576 of 2018 [2021] TZCA 8 (11 February 2021; TanzLII), ECOBANK Tanzania Limited vs A.A. Trans Limited & Others, Civil Appeal No. 399 of 2020) 4 [2024] TZCA 100 (23 February 2024; TanzLII) and Trustees of the Cashewnut Industry Development Fund vs Cashewnut Board of Tanzania, Civil Reference No. 4 of 2006 [2009] TZCA 57 (10 February 2009; TanzLII) to mention few. Other costs like attendance of the party are charged under paragraph 23(a)(g) of the Eighth Schedule to G.N. No. 263 of 2015. Other costs are actual and must be proved by production of evidence unless dispensed by the taxing officer. The applicant’s main complaint in this matter is that bill presented was not supported by production of receipts, rightly so counsel for the respondents said it is not mandatory. Rule 58(1)(2) of G.N. No. 263 of 2015 provides; ‘58(1) Receipts or vouchers for all disbursements charged in a bill of costs (other than witness allowances and expenses supported by a statement signed by an advocate) shall be produced at taxation if required by the taxing officer. (2) All drafts and other documents or copies of them, the preparation of which is charged for, shall be produced at taxation if required by the taxing officer, and those charged for by the folio shall have the folios of the documents or copies consecutively numbered in their margin, and the number of the folios shall be endorsed on them in figures.’ 5 The above stipulated that production of voucher or receipts in support of claimed amount of costs can only be done when so ordered by the taxing officer, that is obvious as the orders has set the rate and fixed amount to be taxed in each transaction. Faced with similar complaint in the case of Tanzania Rent A Car Limited (supra) Kerefu, J.A. stated; ‘On the basis of the above provision and authority I am in agreement with Mr. Kobas that in taxation of bill of costs there is no need of proof of instruction fees by presentation of receipts, vouchers and/or remuneration agreement because the taxing officer, among others, is expected to determine the quantum of the said fees in accordance with the cost scales statutorily provided for together with the factors enumerated above. In this matter the applicant has not submitted on the value of the subject matter for purpose of computing payable instruction fee nor the stage the matter ended in the tribunal for this court to see if it was taxed at full amount or less. This court left in dilemma whether to interfere or not taking into account that the taxing master has discretion to award less or more instruction fee having regard to the care and labour required, the number and length of the papers to be perused, the nature or importance of the matter, the amount or value of the subject matter involved, the interests of the parties, complexity of the matter and all other circumstances of the case as it may be fair and reasonable. I therefore dismiss the complaint on instruction fee. 6 With respect to attendance cost, the applicant relied on non- production of receipts but Mr. Kuboja submitted that the respondents were represented by advocate. Having considered the argument, I find the same is lacking in merit. The applicant has not explained to the court if advocate and the respondents were not attending in the tribunal. As stated elsewhere item 23(a) prescribed attendance cost of TZS 50,000/=. For litigant journey from home which does not exceed seven hours is TZS 20,000/= as per item 23(g) of Eleventh Scheduled of G.N. No. 263 of 2015. As long as the advocate and respondents were attending in the tribunal and in absence of proof to the contrary, this court cannot interfere with the amount taxed by the taxing officer. In Vip Engineering & Marketing Ltd vs CitiBank Tanzania Limited, Civil Application Nao. 24 of 2019 [2021] TZCA 112 (14 April 2021; TanzLII) the court stated; ‘... the Court is reluctant to interfere with the discretion of Taxing Officers unless the decision was entered basing on wrong principles.’ At hand it has not been submitted if the taxing officer acted outside the ring of taxation principles. No such material has been placed before this court by the applicant. The argument that he is just the administrator trying to protect the estates of the deceased has no support of the law as any person contemplating litigation has to be advised very approximately what, for 7 the kind of case contemplated, is likely to be his potential liability for costs. After all costs has to come from the estates of the deceased. In the event, I find no reason to interfere with the decision of the taxing officer concerning the taxed amount. For the reasons stated herein above, this reference fails, and is hereby dismissed with no order as to costs. V.M. NONGWA JUDGE 7/11 /2024 Dated and Delivered at Mbeya this 7/11 /2024 in presence of Applicant in person and Ms. Tunsubilege Mwabukusi counsel for the Respondents. V.M. NONGWA JUDGE 8