nsobi mwaipungu vs curtis mwabulanga 2020 tzhc 1986 30 july 2020

THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA DISTRICT REGISTRY OF MBEYA AT MBEYA LAND REFERENCE NO. 3 OF 2017. (Arising from the Bill of Costs No. 19 of 2016, in the High Court of Tanzania, at Mbeya). NSOBI MWAIPUNGU........................................... APPLICANT VERSUS CURTIS MWABULANGA....................................... RESPONDENT RULING 11/06 & 30/07/2020. UTAMWA, J: In this matter, the applicant, NSOBI MWAIPUNGU made a reference to a Judge of this court against a ruling dated 16/06/2017 (the impugned ruling) of the Taxing Officer of this court, Mr. G. H. Herbert (Deputy Registrar), who will hereinafter be called the Taxing Officer. The impugned ruling was made in the Bills of Costs No. 19 of 2016. According to the record, the matter at hand originated in a land case before the District Land and Housing Tribunal for Mbeya, at Mbeya (the DLHT). The reference is preferred under Order 7 (1) and (2) of the Advocates Remuneration Page 1 of 7 Order, 2015 (GN. No. 264 of 2015). The reference is supported by an affidavit sworn by the applicant. According to the record of the Bill of Costs presented before the Taxing Officer, the Bills of Costs fetched the sum of Tanzanian Shillings (Tshs.) 2, 879, 000/ =. Nevertheless, the Taxing Officer taxed off some items and awarded only Tshs. 513, 500/ = . Aggrieved by this sum, the applicant preferred this reference/application at hand. In the affidavit, the applicant deponed thus; he was the decree holder in the Bill of Costs No. 19 of 2016. The Taxing officer in the said Bills of Costs failed to exercise his powers judiciously when he held that, Items Nos. 1-21, 36 and 38 in the Bills of Costs ought to have been pleaded before the DLHT. It was in fact, proper for the applicant to present such items before the Taxing Officer since the matter had originated in the DLHT and came to this court by way of appeal. The affidavit further stated that, the Taxing Officer wrongly taxed off items 22-30 (related to expenses for transport from Kabwe area of Mbeya City, to this Court, at Matola area during that time). This was because, at that material time, there was no public transport operating in that rout in Mbeya City. This necessitated the applicant to hire a taxi for transport. The affidavit also stated that, for the applicant's economic status, it was reasonable for him to use a taxi. The applicant also complained in his affidavit that, the Taxing Officer erroneously taxed off item 42 of the Bills of Costs since it clearly showed Page 2 of 7 that it was for costs of opening application No. 136 of 2006 and it was supported by a receipt No. 25429371 dated November, 2006. Regarding items 36 and 37, the affidavit stated that, the Taxing Officer wrongly taxed off such items since they were related to costs of hiring a room in a lodge for purposes of attending the case and the same were supported by receipts. The applicant further deponed that, if the ruling of the Taxing Officer is not rectified, he will suffer irreparable loss. In his counter affidavit, the respondent, CURTIS MWABULANGA essentially refuted all the above narrated facts in the affidavit. He also deponed that, the Taxing Officer properly exercised his powers and taxed off the items at issue since they represented unnecessary costs. The respondent however, did not appear on the date when this matter was called upon for hearing despite due service upon him. The applicant thus, prayed to proceed with the matter without the respondent. This court granted the prayer, hence this ruling. I will nonetheless, decide this matter according to law irrespective of the inaction of the respondent. The major issue before me is whether or not the Taxing Officer was justified to tax o ff ail the items in the Bills o f Costs mentioned above or any o f them. I will thus, test the finding of the Taxing Officer regarding each of the items mentioned above. I will do so though I did not access the record of the appeal before this court and those of the DLHT. However, the record of the Bill of Costs presented before the Taxing Officer which are available, suffices for purposes of this ruling. Page 3 of 7 I will begin with items 22-31 of the Bills of costs. They related to expenses for transport from Kabwe to the High Court, at Matola area during that time. The applicant charged for them a flat rate of Tshs. 30, 000/= per each date as cab charges. He also charged a flat rate of Tshs. 5000/= and 6000/= for each date as additional costs without explanation. The Taxing Officer awarded only 5000/= for each day for transport since he found no need for the applicant to hire a cab for the purpose. On his part, the applicant stated that, there were no public transport at that time hence the necessity to hire a taxi. He attached uncertified copies of receipts to support the items. He also contended that, the amount was reasonable for his economic status. In my view, the Taxing Officer properly exercised his discretion. This is because; there is no proof produced by the applicant that at the material time there was no public transport for his use. In fact, he did not even make such allegations on lack of public transport before the Taxing Officer. Furthermore, the applicant did not prove his economic status that he alleged to be the reason for hiring a taxi. Besides, he produced only photocopy receipts in trying to support the claim. He did not produce any original or certified receipts for the purpose. In my view, such mere uncertified photocopies of receipts are not authentic since they can be easily tempered for their nature. In fact, they may not bear the actual contents of their respective original receipts. Moreover, our law guides that, it is necessary to prove claims for costs with documentary or reliable oral evidence without which there is no Page 4 of 7 basis for the award; see the decision of this court in Juma Makiya v. Hamisi Mohamed [1984] TLR 53. The amount awarded by the Taxing Officer in the matter at hand was thus, reasonable according to his discretion and the circumstances of the matter. In law therefore, I am not entitled to interfere with the discretion of a Taxing Officer regarding the awarded costs without any good reason. This court held in Haji Athumani Issa v. Rweitama Mutatu [1992] TLR 372 that, judges will, in most cases not interfere with questions of quantum awarded by Taxing Officers unless they clearly act unjudicially, which is not the case in the matter at hand. Indeed, I agree with the Taxing Officer finding in this respect since in law, costs that must be awarded are only those which are reasonable. Regarding items Nos. 1-21 in the Bills of Costs, I am of the view that, they relate to transport costs incurred when the matter was before the DLHT. The Taxing Officer held that, these items ought to have been filed in the DLHT. I agree with the Taxing Officer because, the applicant did not provide any evidence showing that the judgement of this court on appeal had awarded him costs before it and before the DLHT. That proof of fact could make such items taxable by the Taxing Officer of this court. Again, the receipts he attached in respect of the items under discussion, were mere uncertified photocopies which I have held are unreliable. I will now test the applicant's complaint regarding item 42 of the Bill of Costs. This item clearly showed that, it was for costs of opening application No. 136 of 2006 before the DLHT. It is thus, related to costs incurred when the matter was before the DLHT. The reasons adduced in Page 5 of 7 discarding the applicant's complaints regarding expenses under items 1-21 above thus, apply to this item 42 mutatis mutandis. As to expenses under items 36 and 37 which related to hiring a lodge and meals, the applicant charged Tshs. 580, 000/= and 510, 000/= respectively. The Taxing Officer taxed off the amount under item 37 on ground that the amount was said to be for ten days, but the receipt shows that the paid money were from 21/1/2008 to 23/9/2010 which were more than ten days. I agree with the Taxing Officer that, the attached receipt bears such dates. The applicant did not also prove or allege that he attended the court for all those days consecutively. The same reasons apply to the receipt related to item 36 for Tshs. 580, 000/= which shows that it was for payments from 20/10/2006 to 20/9/2007. Moreover, as I observed earlier, the two receipts are mere uncertified photocopies which are not authentic for purposes of approving the expenses. On the applicant's averment that he will suffer irreparable loss if the ruling of the Taxing Officer is not rectified, I am of the view that, the concern is ungrounded since he did not explain how he will suffer that much. Besides, since I have held above that the Taxing Officer was justified in taxing off the items discussed above, I cannot agree with the applicant that he is at risk of suffering such irreparable loss if his application is not granted. Owing to the reasons shown above, I hereby disregard the applicant's grievances against the impugned ruling of the Taxing Officer. I Page 6 of 7 thus, dismiss this application/reference. I make no order as to costs since the matter proceeded without the respondent. It is so ordered. 30/07/2020. CORAM; HON. JHK. Utamwa, Judge. Appellant: present in person. Respondent: Ms. Ameria Chalamila, advocate. BC: Mr. Patric Nundwe, RMA. Court: Ruling delivered in the presence of the applicant and Ms. Ameria Chalamila, learned counsel holding briefs for Ms. Mary Mgaya, learned counsel for the respondent, in court, this 30th July, 2020. J.iT.K. UTAMWA JUDGE 30/07/2020. Page 7 of 7