final ruling OBEDI EDUARD NDOZI TANZ

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA SUB-REGISTRY OF MOSHI AT MOSHI CIVIL REFERENCE NO. 16555 OF 2024 (Arising from decision Taxing Officer of the District Land and Housing Tribunal of Moshi at Moshi dated 30th day of May 2024 in Misc. Application No.122 of 2023) OBEDI EDUARD NDOZI.……………..…..….………………APPLICANT VERSUS MAGDALENA SAMSON MASSAWE.…………………….RESPONDENT RULING 10th March & 10th April, 2025. A.P. KILIMI, J.: The applicant mentioned above filed an application No. 6 of 2021 against the respondent hereinabove at the District Land and Housing Tribunal of Moshi at Moshi ‘the tribunal’. Thereat he lost the case with costs, consequently at the tribunal the respondent filed an application for bill of costs No. 122 of 2023 and at the end she was awarded by the tribunal to be paid Tshs. 3,424,000/= as costs incurred. Dissatisfied by the said award the applicant has moved this court under Order 7(1) and (2) of the Advocate Remuneration Order, GN. No. 263 of 2015 herein to be referred as ‘Advocate Remuneration order’ and 1 supported by his duly sworn affidavit, whereas the respondent filed a counter affidavit and resisted the application. In his chamber summons the applicant herein has filed this reference seeking the following order; 1. That, this Court be pleased to order for and vary the decision of Hon. R. Mtei, Chairman, District Land and Housing Tribunal for Moshi in Taxation cause no. 122 of 2023 as it was in contravention of order 48 of the Advocates Remuneration Order, 2015 G.N. No. 263 o/2015 and the Eleventh schedule 1 (m) (ii). 2. That, this Honorable Court be pleased to Tax the Taxation Cause no.122 of 2023 according to the Law of the Land governing Taxation of bill of costs. 3. Costs of this reference be provided for. 4. Any other relief the Hon. Court may deem fit and just to grant. When this reference was called for hearing, the applicant had no legal representation whereas the respondent enjoyed the service of Mr. Philemon Shio, learned advocate. With the leave of the court both parties agreed the matter be disposed by way of written submissions. In support of his application, the applicant started by adopting his affidavit and submitted that instruction fees have to be awarded in accordance with four principles as enumerated in the case of Vip Engineering & Marketing Ltd Vs City Bank Tanzania Limited (Civil 2 Application 24 OF 2019) [2021] TZCA 112 (TANZLII) and in accordance with provision of item l (m)(ii) of the 11th Schedule and also Order 48 of the Advocates Remuneration Order. The applicant expounding his claim in lieu of the above law contended that, the act of the trial tribunal of granting to the respondent Tshs. 2,500,000.00 for instruction fee and 954,000/= for other costs and make a total of Tsh. 3,424,000/= was contrary to the guiding principles of the provision in item l(m)(ii) of the 11th Schedule and Order 48 of the Advocates Remuneration Order. The applicant further said that was contrary because Bill of Cost No.122 of 2023 emanated from Application No.06 of 2021 and as per the said law the same should be taxed at the rate of not more than Tshs 1,000,000/=, since it was the bill emanated from an application. The applicant further added that the above costs granted were contrary to the principles stated above, and for instruction fee to be awarded was supposed to compensate adequately to the advocate work done in preparation and conduct of a case and not to enrich him. To buttress this assertion the applicant referred the cases of Smith vs Buller 3 (1875) 19 E9.473 and Rahim Hasham vs Alibhai Kaderbhai (1983) 1 T.L.R (R) 676. In respect to the effect of Order 48 of the Advocates Remuneration Order, the applicant submitted that the bill was excessively claimed, and since the claimed amount was over and above the scales set out in the advocates remuneration order, therefore the whole amount in the said Bill of Costs was to be disallowed under the said provision. He also supported this stance by the case of Tanzania Rent A Car Limited vs Peter Kimuhu (Civil Reference 9 of 2020) [2021] TZCA 103 (TANZLII). Responding to the above, it was Mr. Shio contention that the amount awarded by the taxing master at the tribunal was not excessive but in accordance to the work done and time consumed in prosecuting the said application at the Tribunal which took 3 years, then the learned counsel maintained that the Taxing officer exercised well his discretion to tax instruction fee to the said amount. To support his view the counsel referred this court to Order 12 (1) of the Advocates Remuneration Order and the case of C.B. Ndege vs E.O Aliya and A.G [1988] T.L.R 91. He finally concluded by citing Order 46 of the Advocates Remuneration Orders and 4 prayed this court to see that the amount awarded was reasonable thus this reference should be struck out with costs. I have dispassionately considered the rival submissions from both parties, the issue for determination before me is whether this reference at hand has merits. Briefly according to the applicant’s affidavit, the applicant is challenging the costs awarded as instruction fees and attendance fees. I am aware that it is a principle of law that, the decision of the Taxing Officer will be interfered with only when the Court is satisfied that the decision was arrived upon a wrong principle or a wrong consideration. Where there has been an error in principle the Court will interfere but solely on the question of quantum as regard to the matter which the Taxing Officer is particularly fitted to deal and the Court will intervene only in exceptional cases. (see Kitinda Kimaro vs. Anthony Ngoo & Another (Civil Reference No. 6 of 2016) [2018] TZCA 493 (TANZLII), The Attorney General vs Amos Shavu, Taxation Reference No. 2 of 2000, The East African Development Bank vs Blue Line Enterprises, Civil Reference No. 12 of 2006 (unreported) and Premchand Raichand Ltd and Another v. Quarry Services of East Africa Ltd and Others (No.3) [1972] 1 E.A. 162, to mention a few. 5 To start with instruction fees awarded, according to page 3 of trial tribunal ruling, the taxing officer awarded the respondent Tshs. 2,500,000/= as instruction fees. I am mindful that instruction fees are peculiarly within the discretion of a taxing officer and the court should warn itself to interfere with the taxing officer's decision unless it is proved that the taxing officer acted injudiciously and upon wrong consideration. (See Tanzania Rent a Gar Limited vs Peter Kimuhu, Civil Reference No. 9 of 2020 (unreported), and under Order 12 of Advocate Renumeration order. Nonetheless, the above discretion must be exercised judicious. According to paragraph 2 of the applicant’s affidavit, he avers that the bill of costs emanated from Application No. 6 of 2021 involving a barbed wire boundary fence between the applicant and the respondent whose value was not more than 500,000/= Tshs. This assertion was not disputed by the respondent’s counter affidavit rather it was noted. Now, in my view taking the nature of the case at the tribunal as rightly pointed out by the applicant, the advocate renumeration order is very clear under 11th schedule item l(m)(ii) if the application is opposed instruction fees are to be Tshs 1,000,000/=. 6 However, under the proviso (aa) immediately after the above item, provides that the Taxing Officer, in the exercise of his discretion, shall take into consideration the other fees and allowances to the advocate (if any) in respect of the work to which any such allowance applies, the nature and importance of the cause or matter, the amount involved, the interest of the parties, the general conduct of the proceedings, and all other relevant circumstances. According to page 3 of the tribunal decision, the taxing had the following when awarding instruction fee; “ Nimepitia mawasilisho ya pande zote mbili na nikianza na kipengele cha 1 na kwa kuzingatia m azingira ya shauri husika ikiw a ni pam oja na uzito na ugum u w a shauri pam oja na m uda uliotum ika nimeona kwamba kiasi cha Tshs 2,500,000(= ni kiasi ambacho anastahili. Hivyo kwa kipengele cha kwanza (1) kiasi kilichokubalika ni Tshs 2,500,000/=, zikiwa ni gharama za uwakilishi” [ Emphasis supplied] In my considered opinion, the taxing officer reasoned on the amount awarded as above since the law allows him as said above. I am settled he did not violate any taxation principle as provided above but I have only 7 taken into consideration that the matter involved was an application, in my view, although it was okay for the taxing officer to exceed the stipulated amount by law due to his reasons said, still the amount awarded as instruction fee was excessive, I thus substitute Tshs 2,500,000/= awarded by the taxing officer with Tshs. 2,000,000/= as instruction fees. In respect to another claim by the applicant at paragraph 5 of his affidavit on the attendance fees of Tshs 50,000/=, the applicant was of the view that the awarded amount per day was excessive because the advocate for the respondent was a resident of Moshi. According to 8th schedule item 3(a) of Advocate renumeration order provides that in ordinary cases, per 15 minutes or part thereof attendance fee is Tshs.50,000/=. From the wording of this provision, in my view the practical objective is clear and unambiguous that the fee is directed to the attendance and not otherwise, thus the same is not a per diem as the applicant endeavored to say. Therefore, I have considered how the taxing officer reached the said amount charged and for purpose of clarity I find convenient to reproduce how he reached the same hereunder; “Niliongozwa na kumbukumbu zilizopo katika shauri la msingi nimeona kwamba Wakili 8 Philemon Shio alihudhuria mbele ya Baraza hili akimwakilisha mshinda tuzo aliyekuwa Mjibu maombi isipokuwa kumbukumbu zinaonesha kwamba hakuhudhuria tarehe 3/1/2021 (kipengele cha 2); tarehe 11/04/2022 ( kipengele cha 11); na tarehe 13/04/2023 kipengele cha 21. Hivyo basi Wakili anastahili kurejeshewa kiasi cha Tshs. 900,000/=” According to the above extract, it is clear that days of attendance were discerned from the proceeding of the said case which as a rule court record represents what actually happened. (See, Alex Ndendya vs Republic (Criminal Appeal 207 of 2018) [2020] TZCA 202 (TANZLII); Stanley Murithi Mwaura vs Republic (Criminal Appeal 144 of 2019) [2021] TZCA 688 (TANZLII) and Halfani Sudi vs Abieza Chichili 1981 T.L.R 527 to mention a few. From the above record therefore, I am settled the amount awarded was in accordance to the attendance recorded therefore was correct and justified as awarded by the Taxing officer, in view thereof I see no ground to fault the amount awarded as attendance fee. Finally, in respect to other amount awarded was not claimed for by the applicant thus are not subject of this reference. 9 In upshot, as said above the amount awarded by the taxing officer remain undisturbed except for instruction fee which as depicted is deducted for only Tshs. 500,000/=. Thus, in a whole I substitute Tshs. 3,424,000/= awarded by the taxing officer to Tshs. 2,924,000/= which in my view is reasonable and will meet the justice of the case. In the event, this reference is allowed to the extent stated above. In the circumstances, each party to bear its own costs. It is so ordered. DATED at MOSHI this 10th day of April, 2025. X JUDGE Signed by: A. P. KILIMI Court: - Ruling delivered today on 10th day of April, 2025 in the presence of Mr. Philemoni Shio learned advocate for the Respondent, and Applicant in person. Sgd: A. P. KILIMI JUDGE 10/04/2025 10