MISC

© THE JUDICIARY OFT ANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT KIGOMA (CORAM: HON. AUGUSTINE RWIZILE) MISCELLANEOUS LAND APPLICATION NO. 36 OF 2023 OMARY SHABAN! KAMULIKA COMPLAINANT/ APPELLANT I APPLICANT I PLAINTIFF VERSUS LAURENT ALAMU LUGENDO RESPONDENT I DEFENDANT RULING Fly Notes Facts Ratio Decidendi 30th of August 2024 Hon. RWIZILE.: By its very nature, this application is for reference. It originates from a decision of the taxing officer made in Misc. Land Application No. 94 of 2022, before the District Land and Housing Tribunal of Kasulu, where after dismissing with costs Land application No. 29 of 2022, the respondent applied for costs at the tune of TZS2, 180,000.00. After a hearing, the tribunal taxing officer, taxed it at TZS 1,070,000.00. Instead of paying the same, the applicants filed this application in protest on grounds that it was excessive and therefore should be varied. The application before this court, which is usually the case, has to be supported by an affidavit stating grounds for which it is based. All four applicants, which is unusual, filed separate affidavits sworn by each applicant though similarly worded. In terms of paragraph 5 (1) of each affidavit in support of the application, it is stated; - That the assessment of costs by the taxing master on instruction fee was excessive and not supported with any material evidence. After several adjournments at the instance of Mr. Kelvin Kayaga learned advocate for the applicants' failure to appear physically and fake promises of appearing virtually, it was ultimately successfully directed that at least this application be argued by written submissions. Thank God, this was done in time paving the way to this ruling. On Page. I Hon. AUGUSTINE RWIZILE the side of the respondent, Mr. Method Kabuguzi, learned advocate appeared to take briefs. Mr. Kelvin's desired short submissions, materially cantered on taxing the instruction fees at the high side. Figuring it out, order 48 of the Advocates Remuneration Orders, 2015, GN No. 263 of2015 was on the spotlight. In that, since TZS 2,160,000.00 was the presented bill, but taxed at TZS 1,070,000.00 which is far above one- sixth, the entire bill ought to be taxed off. With respect to Mr. Kelvin, this is not a proper interpretation of the law. Order 48 explicitly provides that 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. Taken hook-line and sinker, one finds a point in his submission, but what is the point here is that order 48 applies in situations where one is engaged to prosecute the bill of costs and yet, one-sixth of the entire bill is taxed off or in the words of the law, disallowed, he should not be entitled for costs of prosecuting the bill costs. The present application presents a quit different picture. What was disallowed is the amount of the bill and the taxing officer did as the record presents. It is therefore true of Mr. Kabuguzi learned advocate for the respondent that, in the given situation, merely, the taxing officer disallows fees for the taxation itself, not the entire bill. I hasten to note further that, in terms of order 12 of the Advocates Remuneration Orders, taxation is an exercise of discretion, since the taxing officer is enjoined to allow such costs, charges and expenses as authorized in the orders (referring to the scales in the schedule to the order) or what appears to him to be necessary or proper for the attainment of justice. Neither can the decision of the taxing officer be simply interfered with by a court unless when the court is satisfied that the decision was arrived at upon an application of a wrong principle or a wrong consideration as held by this court in the case of George Mbuguzi and another vs AS Maskini, [ 1980] TLR 53. (Samatta J as he then was). It is not therefore a legal requirement for the taxing officer to call for evidence to prove payment of fees, provided that he is satisfied that the amount paid as instruction fees, meets the terms of the scales in the orders or appears to be reasonable to attain ends of justice. In this point I am not travelling in a virgin land in the legal field. The general principles governing taxation orders are well settled. It was propounded by Spry V-P, in the leading case of Premchand Raichand Ltd and Another vs Quarry Services of East Africa Ltd and Others (No. 3) [1972] EA 162. The principles are the following: 1. That costs be not allowed to rise to such level as to confine access to courts to the wealthy; 2. A successful litigant ought to be fairly reimbursedfor the costs he has had to incur; 3. That the general level of remuneration of advocates must be such as to attract recruits to the profession; and 4. That as far as practicable, there should be consistency in the awards made. 5. That there is no mathematical formula to be used by the taxing master to arrive at a precise figure. Each case has to be decided on its own merit and circumstances. 6. The taxing officer has discretion in the matter of taxation but he must exercise the discretion judicially, not whimsically. Page. 2 Hon. AUGUSTINE RWIZILE 7. The court will only interfere when the award of the taxing officer if it so high or so low as to amount an injustice to one party It is clear that the case, which the execution got its genesis did not end on merit, but a point in !amine litis, was argued and a determination made. Still, costs applied for were not for Land application No 29 of 2022 only, it also was for application No. 52 of 2022. By implication, the lenient taxing officer allowed court fees for both applications at the tune ofTZS I ,000,000.00 and the rest was other charges. I think and If I may be pardoned for saying this, an advocate travelling from Kigoma to Kasulu to prosecute or defend a case and yet earns at the end of the day what was awarded, it is by any standard in the low side. I find no merit in this argument. If it were my wishes, I could have raised it. There was as I have shown before found no need to demand physical evidence, but there is no reasonable explanation on party of the applicants showing that the amount taxed was excessive. I am not saying it is not a big amount of money based on the nature of the people involved, but it is not in my view as excessive as to be interfered with. The case of Tanzania Rent A Car Limited vs Peter Kimuhu, (CAT), Civil Reference No. 9 of 2020, on page 12; has it that " ... in taxation of bill of costs there is no need ofproof 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 saidfees in accordance with the cost scales statutorily providedfor ... " From the foregoing, I find no reason to interfere with the finding of the taxing officer. None of the laid principle was violated. That being my view, the application has no merit, it is dismissed. Costs to follow the event. Dated at KIGOMA ZONE this 30th of August 2024. AUGUSTINE RWIZILE JUDGE OF THE HIGH COURT Page. 3 Hon. AUGUSTINE RWIZILE