ok holdings ltd vs abdallah ahdunia 2022 tzhclandd 595 30 june 2022

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM LAND REFERENCE N0.7 OF 2021 (Originating from Taxation No. 52 of2020) OK HOLDINGS LIMITED APPLICANT VERSUS ABDALLAH AHDUNIA RESPONDENT RULING Date ofLast Order: 22.06.2022 Date ofRuling: 30.06.2022 T. N. MWENEGOHA,J. The applicant brought the application at hand challenging the award of costs given in favour of the respondent, by Hon. Mbuga, Chairperson of District Land and Housing Tribunal for Kibaha District, vide Taxation No. 52 of 2020. The applicant has insisted that, the costs imposed against him are improper and contravenes the principles of taxation of Bill of Costs, hence this Court should order a re-assessment of the said costs to be done by another Taxing Master. This application was brought under section 7(1) and (2) of the Advocate Remuneration Order, G.N No. 264 of 2015 and Section 95 of the Civil Procedure Code, Cap 33 R. E. 2019, and was supported by an affidavit of Gwamaka Mwaikugiie, Advocate for the applicant. The same was heard by way of written submissions, Mr. Gwamaka Mwaikugiie appeared for the applicant while the respondent enjoyed the legal services of Advocate Mary M. Lamwai. Arguing in favour of the application, Mr. Gwamaka maintained that, though awarding costs is within the discretion of the Taxing Master, but the same shouid be exercised justly subject to Order 12(1) and 13 of the Advocates Remuneration Order of 2015. That,the Advocate Is not allowed to accept or charge remuneration over and above those prescribed in the order unless on special circumstances. That, the Instruction fees granted to the respondent was too high contrary to the scale of the Advocate Remuneration Order, G.N No. 264/2015 and also the case of Premchand Raichand Ltd and Another vs. Quarry Services of East Africa Ltd and Others(No. 3){1972} E.A. He went further to argue that, the appearance fees awarded was also too high. The respondent claimed a flat rate amount without showing the amount of time spent In Court to prove the same is justifiable. In reply, Mary Lamwal was of the view that, the Taxing Master as per Order 12(1) of G.N 263 supra, has been given a wide discretion as far as taxation of Bill of Costs cases are concerned. That,the same is the position laid down by the Premchand Raichand Ltd and Another,(supra). That, it is the duty of the person aggrieved by the decision of the Taxing Master to prove how the Taxing Master acted unjustly. That, there is nowhere in the affidavit in support of the application or the submissions, the applicant has shown specifically how the Taxing Master acted contrary to the law. It was his submission that, there is no need of any sort of interference in the Taxing Master's discretion in the matter at hand and that, the application by the applicant is unfounded and lacks merits and it shouid be dismissed. In rejoinder, the counsel for the applicant insisted that, the respondent's counsei must understand that,the law is not there to favour anyone rather to ensure justice. Despite the fact that the iaw has given discretional powers to the Taxing Master but that does not mean one should just make any orders without fist acting judiciously. That, such orders must be reasonable and fair. I have gone through the submissions of parties in this case. The issue is whether the application has merits. The answer to the issue in dispute is found in the records of the tribunal with regard to the Taxation Case No. 52 of 2020. The said records show that, the total costs granted by the Taxing Master is 3,414,000/= out of 5,650,000/= prayed. The Taxing Master, Hon. S. L. Mbuga in his decision has given detailed reasons on why the costs were reduced to the amount granted. Looking at his reasons for his decision, I find nothing warranting to fault the same. The arguments by Advocate Gwamaka that the Taxing Master used his discretionary powers unreasonably hence awarded excessive costs to the applicant are unfounded. As argued by Advocate Lamwai, there is no proof of that from the applicant, only mere statements from the applicant's learned counsel. In my view, the decision of the Taxing Master has well observed the rules given in Premchand Raichand Ltd and Another,(supra) as far as taxation of bill of costs cases are concerned, particularly on the instruction fees item. As I have said here in earlier decision given by the Taxing Master, vide Taxation No. 52 of 2020 is justifiable and this court upholds it accordingly. In the event, I find this application to be devoid of merits and the same Is hereby dismissed with costs. It is so ordered. T. N,,l^fWENEGOHA JUDGE 30/06/2022 OF //.p c o o yT * CANV