ORXY OIL CO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (COMMERCIAL DIVISION) AT PAR ES SALAAM COMMERCIAL REFERENCE NO. 1285 OF 2024 (Arising from the Ruling in Taxation Cause 81 of 2023 By Hon. J. M. Minde Taxing Officer dated 18th January 2024) ORXY OIL COMPANY LIMITED.............................................APPLICANT VERSUS YUSUPH WASHOKERA...........................................................RESPONDENT RULING Date of last Order: 11/06/2024 Date of Ruling: 05/07/2024 GONZI, J. Under order 7(1) and 7(2) of the Advocate Remuneration Order GN No.263 of 2015, the Applicant filed this reference praying for the following orders: 1. That this honourable Court be pleased to make a finding that there is a reasonable and sufficient cause to allow an objection reference, set aside and or vacate the decision of Hon. J.M Minde, Taxing Officer dated l&h January 2024 in Taxation Cause No. 81 of2023. 2. Costs of this application be provided for, and 1 3. Any other reliefs that this honourable Court deems fit and just grant. The application was supported by an affidavit sworn by Mr. Jeremia Edward Tarimo, learned Advocate for the Applicant. On the other hand, upon the Respondent being served with the reference he filed a counter affidavit affirmed by Mr. Yusuph Washokera, the Respondent herein, denying the allegations contained in the Applicant's affidavit. The Applicant was the Plaintiff in Commercial Case No. 103 of 2020 which was between Oryx Oil Company Limited as the Plaintiff versus Alphonce Joseph Macha T/A Barabara ya Taifa Oryx Service Station as the 1st Defendant; Yusuph Washokera as the 2nd Defendant; Peter Kaale as the third Defendant and Community Petroleum Limited as the Fourth Defendant. On 14 April 2023, the Applicant prayed to amend her plaint. The prayer was resisted and hence rejected by the Court. Instead, the Applicant dropped the 1st and 2nd Defendants from the suit and they were awarded costs. Following the order of costs in their favour, Alphonce Joseph Macha T/A Barabara ya Taifa Oryx Service Station and Yusuph Washokera, separately instituted their Bills of Costs. The Bill of Costs filed by the Respondent herein was registered as Taxation Cause No. 44 of 2023. On 4th August 2023, the Court struck out the said Bill of Costs on technical grounds and granted the Respondent 7 days' period of time to refile the struck-out Bill of Costs. The certified copies of the Ruling and Drawn Order allowing him leave to refile the struck-out Bill of Costs had wrong details and therefore the Respondent had to apply to Court for issuance of rectified copies of Ruling and Drawn Order. Ultimately, on 18th August 2023, the Respondent refiled his Bill of Costs which was registered as Taxation Cause No.81 of 2023. Taxation Cause No.81 of 2023 was 2 between the Respondent herein as the Applicant and the Applicant herein as the Respondent. In Taxation Cause No.81 of 2023, the Respondent presented a total claim of TZS.161, 780,669/= for taxation. Following the disposal of Taxation Cause No.81 of 2023, on 18th January 2023 the Taxing Officer issued a Ruling and Certificate of Taxation which granted the Respondent a total amount of TZS. 131,385,990/= as the final amount taxed. The Applicant being aggrieved by the Ruling and Certificate of Taxation of the Taxing Officer, preferred the present Reference against the Ruling and Certificate of Taxation of the Hon. Taxing Officer on the grounds that: (a) The Honourable Taxing Officer erred by taxing a total of TZS. 131,385,990/= to the Respondent contrary to the principle of excessive claim. (b) The honourable Taxing Officer erred in law by taxing TZS. 128, 025,990/= to the Respondent as instructions fees in the absence of proof to that effect. (c) The honourable Taxing Officer erred in law in entertaining the Bill of Cots which was time barred. (d) The honourable Taxing Officer erred in law in determining a Bill of Costs filed outside the limit given in the leave to refile order, without proof of the date within which the rectification of the Drawn Order was done. (e) The Honourable Taxing Officer erred in law by delivering the Ruling in favour of the Respondents while disregarding all the relevant and binding case laws presented by the Applicant's counsel in opposition to the taxation proceedings, without giving reasons thereto. 3 During the hearing of this application, the Applicant was represented by Mr. Gerald Shita Nangi, learned Advocate. On the other hand, the Respondent was represented by Mr. F.A.M Mgare, learned Advocate. This application was argued by way of written submissions. I thank both learned Counsel for their useful submissions. The learned Counsel for the Applicant adopted the Affidavit supporting the application. He organized his submissions under three major headings namely breach of the excessive claim rule, the Bill of Costs being time barred and violation of the guiding principles of taxation. Mr. Gerald Nangi, learned Advocate, started his submissions with respect to the breach of excessive claim principle. He argued that there was a breach of the excessive claim principle by the Taxing Officer. He submitted that under paragraph 7 of the affidavit in support of this application, the Bill of Costs was taxed in favour of the Respondent who was granted a total amount of the TZS. 131,385,990/= as the final amount while the total amount of TZS. 30,394,679/= was taxed off or disallowed by the Taxing Officer. He argued that the total amount taxed off by the Taxing Officer (TZS. 30,394,694/=) was more than one-sixth of the total amount presented for taxation in the Bill of Costs which was TZS. 161,780,669/=. He argued that the one-sixth of TZS. 161,780,669/= isTZS.26,963,445/=. He argued that as more than one-sixth of the amount presented in the Bill of Costs was taxed off, the Respondent did not deserve to be awarded any amount of costs in the end. He argued that by taxing off more than one-sixth of the total amount of the Bill of Costs and still awarding the Respondent the remaining amount, the Taxing Officer thereby violated the 4 provision of Order 48 of the Advocates Remuneration Order, GN No.263 of 2015 which 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 ofsuch taxation: Provided that, at the discretion of the taxing officer any instruction fee claimed, maybe disregarded in the computation of the amount taxed off that fee in the computation of the one sixth." Mr. Nangi, learned Counsel for the Applicant, referred this Court to a number of decided cases to support his argument including the following cases decided by the High Court: Bahdela Co. Limited v. Petrofuel (T) Limited, Commercial Reference No.12 of 2022, where the High Court Commercial Division at Dar es Salaam (unreported) whereby at pages 7, 8 and 9 the Court had this to say; "The above provision is louder and dear that where one-sixth of the bill of costs is disallowed, then the party presenting the bill is not entitled to any costs. The Applicant does not dispute that more than one-sixth ofclaims was taxed off. What the Applicant contests is that the taxing officer ought to invoke her discretion under the proviso to exclude the instruction fee from the computation of the amount claimed (taxed off)." 5 The learned Counsel for the Applicant, also, referred this Court to numerous other cases decided by this Court with the same bearing to the effect that once the one sixth of the total amount claimed is taxed off, the entire Bill of Costs ought to be disallowed. These included the cases of John Memose Cheyo vs Stanbic Tanzania Limited, Commercial Reference No.72 Of 2018 in the High Court Commercial Division at Dar Es Salaam (Unreported); Strategies Insurance Tanzania Limited V. Salaaman Health Centre, Civil Reference No.5 of 2023, High Court of Tanzania at Dar Es salaam (unreported);Dr. David Livingstone Memorial and Bagamoyo Zoological Society Park Limited v. Dodsal Hydrocarbons and Power (Tanzania) PVT J Limited, Civil Reference No.18 Of 2020 High Court of Tanzania Land Division at Dar Es Salaam (unreported); Saad Sadik v. EFC Tanzania Microfinance Bank Limited and Others, Reference No.31 of 2022 High Court of Tanzania Land Division at Dar Es Salaam (unreported);EFC Tanzania Microfinance Bank Limited V. Peter Zacharia Sarno, Reference Application No.21 of 2023; High Court of Tanzania -Land Division At Dar Es Salaam (Unreported); Tafisa General Enterprises Limited v. Tanzania National Roads Agency, Civil Reference No.02 Of 2020 High Court of Tanzania Mbeya District Registry (unreported) ; Commissioner of Shinyanga v. Bernard Msonga Sizasiza Civil Reference No.l Of 2019 High Court of Tanzania Shinyanga District Registry (Unreported; Elizabeth Tito and Erick Thomas v. Agness Erasto Malungwa Civil Reference No. 6 Of 2022 High Court of Tanzania Mwanza Registry (unreported); Equity For Tanzania Limited v. Odwina Chrtistandus Haule , Reference V No.5 Of 2022 High Court Of Tanzania Bukoba District Registry (unreported); 6 Mr. Nangi, learned Advocate, argued that once more than one-sixth of the total amount claimed in the Bill of Costs is taxed off, the entire bill of costs ought to be disallowed. He, therefore, faulted the Ruling of the Taxing Officer for violating the principle against excessive claim in taxation of costs proceedings. The second ground of challenge on which the Applicant's learned Counsel directed his submissions in this reference was that the Bill of Costs filed vide Taxation of Costs No.81/2023 was time barred. In this aspect, Mr. Nangi, learned Counsel for the Applicant submitted that the Bill of Costs was time barred as it was filed outside the time limit given by the Court in the leave to refile order, without proof of the date within which the rectification of the drawn order was done. He submitted that the Respondent had initially filed Taxation Cause No.44 of 2023 against the Applicant, and on 4th August 2023 the said Bill of Costs was struck out with leave to refile after the Court had noticed that the Drawn Order needed to be amended to include the correct case number and the precise statement as to which proceedings did the costs emanate from. He argued that the Respondent came to refile the Bill of costs which is the subject of this reference , on 17th August 2023 which was a delay of 13 days from the date of the refiling order given by the Court. He argued that the Respondent did so without proof of when the rectification was done so as to establish the time limitation issues. He argued that without proof of the date when rectification of the drawn order was done by the Court, the refiled Bill of Costs subject to this application, was filed out of the prescribed time. He submitted that the Bill of Costs in Taxation Cause No.81/2023 ought to have been dismissed for being time barred. 7 The third aspect in which Mr.Nangi, learned counsel for the Applicant directed his arguments in this reference was on non-adherence to the taxation of costs guidelines by the Taxing Officer. The learned counsel for the Applicant argued that the Taxing Officer erred in law by delivering the Ruling in favour of the Respondent whilst disregarding all the relevant and binding case laws presented by the Applicant's counsel in opposition to the taxation proceedings. It was the submission by the Applicant's learned Counsel that the taxing Officer's decision should be vacated from and set aside. He referred this Court to the case of Sugar Board of Tanzania vs Mhango and Company Advocates (Consolidated Civil Reference no. 5 Of 2019) [2021] Tzhc 5830 (27 August 2021) which was determine on the basis of the Court of Appeal case of George Mbugus Vs A.S Maskini [TLR] 53 in which it was held that: "The amount of the suit is not the exclusive factor for consideration by the Taxing Officer when computing the Bill ofCosts. It is only one of those factors which the Taxing Officer should consider in determining what is fair and reasonable fee in the circumstances ofa particular case. Such other factors as the complexity of the matter, the time spent in the hearing or arguments and the research involved are also relevant." The learned advocate for Applicant submitted that since the suit giving rise to the order of costs was not heard on merit and it was not complex, it was wrong for the Taxing Officer to grant the excessive amounts claimed in the Bill of Costs. 8 The learned Counsel for the Applicant also invited this Court to Taxation Reference No. 14 of 2022 between CRDB Bank PLC v. Starpeco Limited and Another where at pages 10 ,14 and 15 the Court in its Ruling reiterated the taxation of costs guidelines to include: 1. The scales provided by law; 2. The nature of the matter; 3. Complexity of the matter; 4. Conduct of the proceedings; and 5. All other circumstances of the case as it may be fair and reasonable. The Learned Counsel for the Applicant argued that in the case at hand the Taxing Officer failed to use the guidelines correctly given the nature of the suit and the stage in which it had ended including the fact that: i) The suit (Commercial case No. 103 of 2023) against the Respondent was finalized by a Ruling of the Court which denied the Respondent prayer to amend the plaint. ii) Trial was not conducted, and examination of witnesses had not been done, hence the suit ended by a Drawn Order which denied amendment of the plaint iii) The suit was not finalized as it was later refiled and there is now a refiled Commercial Case between the Respondent and the Applicant which is pending before Hon. Agatho, J., which as of 18th April 2024, it was scheduled for hearing. iv) The Respondent cannot claim to have taken much time to defendant his case as all the evidence is in the documents filed by the Respondent in Court. 9 Mr. Nangi, learned counsel for the Applicant, reiterated his prayers that the reference be allowed with costs. Mr. Mgare, learned Counsel for the Respondent, made his reply submissions. He argued that the proviso to Order 48 of the Advocates Remuneration Order, GN No. 263 of 2015, clearly provides that the one- sixth Rule can only be applied if and only if the Taxing Officer at her discretion disregards the instruction fee. He argued that in this case there is no evidence that the Taxing Officer exercised her discretion to disregard the instruction fee for the purposes of computing the one-sixth of the total amount of the Bill of Costs as presented. He argued that in absence of such evidence the one-sixth rule cannot be applied in this case. The Respondents Learned Counsel submitted further that even assuming, for the sake of argument, that the one-sixth rule applied to the case at hand, still the Respondent could not be denied the entire amount claimed in the Bill of Costs but he could only be denied the costs of such taxation before the Taxing Officer and not otherwise. He argued that Order 48 of GN No. 263 of 2015 is very clear that in case the amount taxed off in the Bill of Costs exceeds one sixth of the total amount of the Bill of Costs claimed, less instruction fee, then if the Taxing officer exercises his/her discretionary powers, then the furthest extent she/he can go is to deny a party the costs of such taxation cause. He submitted that the Taxation Cause being an application, the amount which could be denied does not exceed TZS 1,000,000/= (Shillings one million only). The learned Counsel for the Respondent referred this Court to Item IV of the Ruling of the Taxing Officer titled "costs for this bill of costs". He submitted that the said amount is what is targeted by the one-sixth rule. The learned counsel for the Respondent submitted that if the Parliament intended to 10 completely deny a party the expenses or costs incurred in the case, then it ought to have expressly said so. He argued that, in any. case, denying a successfully party to the case, the entire claimed costs she /he incurred to defend /prosecute the case, would be highly prejudicially to that party. The Respondent's learned counsel submitted that to completely deny a party of his costs would be unjust, unfair, unreasonable and against the principle of the law that the winning party in a case must be fairly reimbursed for the costs he/she incurred. He relied on the cases of Wambura Chacha versus Samson Chorwa LRT No.4 and George Mbughuzi and Another versus A.S Maskini (1980) TLR 53. Mr.Mgare, learned Counsel for the Respondent, relied on the case of Premchard Raichand versus Partrick Edward Mushi and Another (2016) 1 TLR 560. He submitted that where when faced with the question of interpretation of the one-sixth rule, the Court had this to say: " The one sixth rule stated in Rule 46 of the Advocate Remuneration and Taxation of Costs Rules 1991, GN No. 515 of 1991 [now Order 48 of GN No. 263 of 2015] does not make reference to costs of the total Bill of Costs as the learned counsel for the Applicant would want this Court to hold. The words used "costs of such taxation" are by no means ambiguous, they refer to costs of such taxation before the Taxing Officer" The Respondent's counsel urged this Court to follow the above interpretation as the most correct interpretation and position of the law. 11 He urged this Court to depart from the string of cases cited by the learned Counsel for the Applicant as they were erroneously decided. He argued that giving Order 48 of GN No.263 of 2015 a different interpretation, will lead to absurdity. The Respondent's learned counsel submitted that the taxation powers are discretional upon the Taxing Officer and a Court will not interfere unless it is satisfied that the discretion was based on a wrong principle. He cited the cases of Pardhan versus Osman (1969) 538, George Mbughuzi and Another Versus A.S Maskini (1980) TLR 53 and Gautam Jayram Chavda versus Cowel Mathews Partnership, Reference No. 21 of 2004 decided by the Court of Appeal (Unreported). Regarding the long list of authorities relied upon by the learned counsel for the Applicant, Mr. Mgare, learned counsel for Respondent, submitted that all those cases dealt with the interpretation of Order 48 of GN No. 263 of 2015 but all those cases misinterpreted the said paragraph 48 of GN No. 263 of 2015, as a result, he argued, the said decisions were erroneously decided. He concluded his first point by urging the Court to dismiss the reference application. On the second ground of reference, the learned Counsel for the Respondent submitted that the Respondent had initially filed Taxation Cause No.44 of 2023 against the Applicant and the same was struck out by the Taxing Officer on 4th August 2023 with leave to refile it. He submitted that as per annexure "A" to the Respondent's counter affidavit, the rectified Order was extracted by the Taxing Officer on 14th August 2023 and thereafter the Taxation Cause No.81 of 2023, the subject of this reference, was filed on 18th August 2023. He reasoned that counting the 12 seven days extended to the Respondent for refiling his Bill of Costs, from 14.8.2023 when the Drawn Order was rectified and extracted, to 18.8.2023 when the Bill of Costs No.81/2023 was refiled, there was a lapse of only four days and, therefore, the Bill of Costs No.81/2023 was filed within the ordered period of seven days as had been granted by the Taxing Officer, which expired on 25.8.2023. On the third ground of reference, the Respondent's Counsel argued that the Taxing Officer in deciding the Bill of Costs, considered all the authorities cited by the Applicant and all the relevant factors. He submitted that some of those cases were applied while some of them were distinguished. He argued that the Taxing Officer properly applied the principles governing taxation of Bill of Costs and taxed the Bill as per the prescribed scale as provided for under part 4 of the Advocate Remuneration Order, GN No.263 of 2015. He argued that the powers of the Taxing Officer to tax any Bill of Costs are discretionary and are exercised judiciously. He relied on Mwita S/O Mhere and Ibrahim Mhere Versus Republic 2005 TLR 108. It was the submission by the Respondent's counsel that all the guidelines including those stated in the case of CRDB Bank PLC versus Starpeco Ltd and Another (supra) were considered. He argued that, in addition, the Taxing Officer considered the nature of the suit, the stage at which the case had ended as well as the facts of the case. The learned counsel for the Respondent referred this Court to paragraph 2 of page 9, and paragraphs 1 & 2 of page 10 of the Taxing Officer's Ruling dated 18.1.2024. He argued therefore that, as such, there is nothing to interfere with by this Court in the decision of the Taxing Officer and prayed that the Reference Application be dismissed with costs for lack of merits. 13 In rejoinder, Mr. Gerald Nangi, learned Advocate, maintained his position as expressed in his submissions in chief. He added that the term "costs of such taxation" were interpreted by this Court in one of its own former decisions concerning the same issue namely in the case of Bahdela Co. Limited v. Petrofuel (T) Limited, Commercial Reference No. 12 of 2022, decided by the High Court Commercial Division at Dar es Salaam. He argued that in that case the phrase "costs of such taxation" was interpreted to mean "the costs claimed in the bill of costs." He argued that costs of the taxation include all costs presented and that's why the proceedings are called "taxation cause". The Applicant's counsel submitted that the rule in the case of NIC Bank Limited v. Patrick Edward Moshi and Another (supra), doesn't apply in this case as it was decided in December 2016 and was based on the old and repealed rules of remuneration prior to the coming into force of the Advocates Remuneration Order, 2015. On failure by the Taxing Officer to take into account the relevant factors, the Applicant's learned Counsel submitted in rejoinder thereto that the Taxing Officer at page 9 of the Ruling in Taxation Cause No.81 of 2023 dated 18.1.2024, wrote that: ”1 took liberty to go through the proceedings of Commercial Case No. 103 of2020 and noted that the suit took more than 2 years in Court, the Respondent claiming a sum of Tsh. 4,267,533,044/= the amount due to the sale of petroleum..." 14 The learned Advocate for the Applicant therefore submitted that the reasoning by the Taxing Officer, as reproduced above, did not take into account all the relevant factors for consideration in determining the Bill of Costs. After hearing the submissions of the learned Counsel for both sides, I will now proceed to determine the matters in contention between the parties herein. I will be brief in my decision as the issues in controversy do not raise a novel point of law. There exist numerous previous decisions of the High Court to rely upon for either side of argument. The first complaint levelled against the Ruling of the Taxing Officer was that of violating the excessive claim principle or the one-sixth rule. It was argued that the amount taxed off from the Bill of Costs exceeded one-sixth of the total amount presented in the Bill of Costs. The Applicant therefore submitted that the Respondent deserved no costs at all to be awarded. In the case at hand, I agree that the amount of costs taxed off exceeded one-sixth of the total amount claimed under the Bill of costs. I have considered the implications of the said Order 48 of the Advocates Remuneration Order. It reads that: 48. 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: Provided that, at the discretion of the taxing officer any instruction fee claimed, may be disregarded in the computation of the amount 15 taxed of that fee in the computation of the one- sixth. In my literal interpretation of the above provision, I subscribe to the position taken by the Respondent in this case that the effects of violating the one-sixth rule will only visit upon the costs of such taxation of costs proceedings and not the total amount presented in the Bill of costs. The Rule is very clear when read in its proper context. The Rule itself, even before taking on board its proviso, makes reference to three categories of sums of money. The first sum is "the total amount of a bill of costs". This is made up of the total amount of costs already incurred by the party in the main case that ended with an order of costs being made in his favour. They do not include the costs of the taxation proceedings which are never quantified in the bill of costs in terms of Order 55(3) of the Remuneration Order. If the phrase "the total amount of a bill of costs" were to include the costs of taxation proceedings itself, it could result into absurdity as it would be impossible, at the time of presenting the Bill of Costs, to ascertain the "total amount". It would also be impossible to ascertain the one-sixth of costs claimed. This is because the one-sixth of costs to be disallowed in the event of an excessive claim, is calculated from the total amount of a bill of costs presented by a party in the bill for taxation. At the time when a bill is presented for taxation, the costs of that taxation of costs proceedings is unknown and the slot in the presented bill of costs for the details of the costs of that taxation is left blank. Now, if the total amount of a bill of costs were to include the amount of taxation of costs proceedings and the one-sixth portion were to be calculated with respect to all costs including the costs of the taxation proceedings, it would be impossible to get the "total amount" or to 16 compute the one-sixth portion thereof for the purpose of implementing the rule against excessive claims of costs. The uncertainty would be caused by the practical and legal requirement that at the time of presentation of the bill of costs, the section for costs of such taxation is to be left blank. Therefore, the actual amount of such costs of taxation can only be known after the taxation proceedings are completed. If the costs of taxation, were to be included in the total amount of the bill of costs for the purposes of taxation process, it would entail an arbitrary imposition or quantification of such costs of taxation as they would be calculated or ascertained without completion of the taxation of costs exercise after which the Taxing Officer is expected to determine the commensurate and reasonable costs of such taxation of costs proceedings. What constitutes "taxation of costs" was explained by Okwany,!, of the High Court of Kenya in the case of Miller & Company Advocates v China Roads & Bridge Corporation [2021] KEHC 408 (KLR) where he stated that: "Taxation of costs is part and parcel of the execution process, complete with its provisions for stay of execution, under the Civil Procedure Rules." Since taxation is essentially execution of the Order of Costs, the costs of taxation process cannot be known beforehand prior to the taxation proceedings taking place before the Taxing Officer. Hence, the phrase "costs of such taxation" under order 48 of GN 263/2015 cannot be taken to refer to the total amount in the bill of costs presented for taxation. It refers to the costs that will arise from such taxation process. Participating in the taxation process may result into a party incurring 17 additional distinct costs over and above the ones granted in the Court order that had awarded him costs and in respect of which a bill of costs was presented. Such costs of taxation arising or emanating from the taxation of costs proceedings, are the ones which fall under the second sum described under Order 48 of the Advocates Remuneration Order, GN 263 of 2015, as "such costs of taxation". It must be remembered that the costs of presenting the Bill of Costs are also claimed within the same Application for Bill of Costs together with the costs in respect of the case that gave rise to the Bill of Costs which is being presented. This is the import of Order 55(3) of the Advocates Remuneration Order. It provides that: "the fees for attending taxation shall not be included in the body of the bill, but the item shall appear at the end, and the amount left blank for completion by the taxing officer." Therefore, a typical Bill of Costs Application entails two main categories of costs; namely costs of the case that contains the order awarding the costs thus giving rise to the Bill of Costs filed and the costs incidental to the presentation of and attending to the Bill of Costs proceedings before the Taxing Officer. The former head involves the already incurred costs which are liquidated and claimed as such, while the later head involves unascertained costs that are likely to be incurred in the course of attending the bill of costs proceedings before the Taxing Officer. The exact amount under the later head is not known in advance and therefore cannot be detailed in the Bill of Costs Application. The amount thereof will be known after the taxation of costs exercise is completed whereby the Taxing Officer, in his discretion, may determine whether or not to grant such costs and to what extent. Therefore, the phrase "the total amount of a bill of costs" refers only to the amount related to the costs of the earlier case that gave rise to the Bill of Costs. It doesn't refer to the amount related to costs of presenting 18 and attending the Bill of Costs for taxation proceedings. I am therefore, of the opinion that the "total amount of a bill of costs" presented for taxation is a different and separate sum of costs from "the costs of such taxation". The two emanate from different Court Orders, are founded on different justifications and are ascertainable at different times in the taxation of costs process. The disallowance to a party of costs violating the one-sixth rule, does not relate to both sums combined or separately. It relates only to "the costs of such taxation" and not "the total amount of a bill of costs" presented for taxation. The one-sixth rule, therefore, operates to erode "the costs of such taxation" and not "the total amount of a bill of costs" presented for taxation. In the case at hand, therefore, although the Taxing Officer had taxed off more than one-sixth of the "the total amount of a bill of costs" presented for taxation from TZS. 161, 780,669/= to TZS. 131,385,990/=, the remaining amount of costs awarded to the Respondent cannot be denied to the Respondent under the excessive claim principle because that principle, in my respectful view, does not visit upon the "the total amount of a bill of costs" presented for taxation, rather it visits upon the "costs of such taxation." This means that applying the one-sixth rule to the Taxation Cause No.81/2023, the Respondent did not deserve to be paid a single cent under the heading of the "costs of this Bill of Costs", after the end of the taxation process. The Taxing Officer in her Ruling, granted an amount of TZS. 1,000,000/= to the Respondent as costs of the Bill of Costs. That was not correct. The amount must therefore be deducted from the awarded costs. The third sum referred to under Order 48 is made up of "Court fees". This is the amount which the party presenting the Bill of Costs claims reimbursement thereof as the Court fees he paid in Court relating to the 19 case that ended with, an order of costs in his favour. In terms of Order 48 of the Advocates Remuneration Order, the Taxing Officer is required to exclude the Court fees when calculating the one-sixth of the total amount of bill of costs presented for taxation, for the purposes of denying the costs of taxation to the party presenting an excessive claim. As I conclude in respect of the first contented point of reference, which was extensively argued and hotly debated by the learned counsel in this application, I would like to reiterate as an emphasis that the words "the costs of such taxation" under Order 48 of the Advocates Remuneration Order, 2015, do not refer to the earlier stated sum of "total amount of a bill of costs". The words make a definite reference to the process of "taxation of costs" which was earlier made under the same provision by virtue of the phrase "presenting the bill for taxation." In other words, the completely excluded or denied costs due to presentation of an excessive claim, are only those costs of presenting and attending in a bill of costs for such taxation and not the "the total amount of a bill of costs" presented by a party for taxation. I do therefore, decide the first issue in this reference in’ favour of the Respondent. The second ground of reference argued by the Applicant was that the Bill of Costs No.81/2023 was time barred. I have looked at the record before the Court. I am satisfied that the learned Counsel for the Respondent was correct when he argued that as per annexure "A" to the Respondent's counter affidavit, the rectified Order was extracted on 14th August 2023 and Taxation Cause No.81 of 2023, which is the subject of the present reference, was filed in Court on 18th August 2023. Therefore, as it was argued y the Respondent's learned counsel, counting the seven days which were extended to the Respondent for refiling, from 14.8.2023 20 when the order was rectified and extracted to 18.8.2023 when the Bill of Costs No.81/2023 was refiled, there was a lapse of only four days. Therefore, the Bill of Costs No.81/2023, in law, was filed within the ordered period of seven days as had been granted by the Taxing Officer, which expired on 25.8.2023. The Applicant's arguments on this aspect therefore fail as well. The last ground of reference advanced by the Applicant was that the Taxing Officer failed to correctly use the guidelines of taxation of costs given the nature of the suit and the stage in which it had ended. He submitted that the relevant factors not taken into consideration by the Taxing Officer included the facts that: i) The suit (Commercial case No. 103 of 2023) against the Respondent was finalized by the Ruling of the Court which denied the Respondent prayer to amend the plaint. ii) Trial was not conducted, and examination of witnesses had not been done hence the matter ended by a Drawn Order which denied the amendment of the plaint iii) The matter had not been finalized as there is now pending Commercial Case No.81 of 2023 pending before Hon. Agatho, J., scheduled for hearing on 18th April 2024. iv) The Respondent cannot claim to have taken much time to defendant its case as there is evidence as to the documents filed in Court all of which suggest otherwise on the part of the Applicant. I have carefully gone through the record of the Court. I am inclined to accept the Applicant's complaint on this heading. The Taxing Officer, in 21 my view, did not adhere fully to the rule in George Mbugusi versus AS Maskini (1980) TLR 53. It was held that specific amounts in the suit is not the sole factor for determining amount of costs. Other factors include complexity of the matter, time spent, and research involved. In Taxation Cause No.81/2023, the Taxing Officer considered many relevant factors but equally she left out some very critically relevant factors which ought to have been taken into consideration. In the Taxation Cause No.81/2023 I find that other relevant factors also included the ones mentioned by Mr. Nangi in his submissions. These included the facts that the Respondent and another person were jointly represented as the 1st and 2nd Defendants in the main case that gave rise to the order of costs. They filed a Joint Written Statement of Defence and had the services of the same advocates. It means that the complexity of the matter, the time spent and research input involved were alt cost items which were actually shared by the Respondent and his co-defendant in that case. Ordinarily and reasonably they shared the costs of the suit between jointly. Since the only Defendants out of four in that case who were awarded costs by the Court order allowing withdrawal of the suit with leave to refile but with costs, were the Respondent and his co-Defendant, it is fair in my view, that the cost implications thereof should be halved or split into two and therefore shared rateably between the Respondent herein and the other person who was his Co- Defendant in whose favour the costs were awarded. Also, there is another equally important factor which was not considered sufficiently. The main case in which the costs were awarded ended without full hearing with withdrawal of the suit against the Respondent and the other person who was his co-defendant in the suit, with leave to refile it against them. The costs were awarded to two Defendants in the suit after the suit against the other 1st and 2nd 22 Defendants had been earlier dropped out due to the need to amend the plaint. The prayer for amendment was refused, instead the Applicant was allowed to withdraw the suit with costs and refile it. The Applicant has submitted, without contrary response from the other side, that the withdrawn suit has already been refiled against the Respondent and that it is now going on. The withdrawal of the suit with costs under leave to refile and the undisputed fact that the withdrawn suit has already been refiled, means that the proceedings in the suit giving rise to the order of costs are continuing and that all parties involved will incur additional costs. This is a relevant factor which should have been taken into consideration as well in ascertaining the quantum of costs. Therefore, in my view, it was wrong to award costs on full indemnity basis in the circumstances on Commercial Case No. 103 of 2020. I partly allow the application on this ground in that the Taxing Officer did not adequately consider all the relevant factors in the prevailing circumstances of Taxation Cause No.81/2023 emanating from Commercial Case No. 103/2020. In fine, I partly allow the application at hand. I make the following orders: (a) I reduce to a half the amount of costs awarded to the Respondent by the Taxing Officer in Taxation Cause No.81/2023 from TZS 131,385,990/= to 65,692,995/= . (b) I disallow the TZS 1,000,000/= awarded to the Respondent as costs of the taxation of costs proceedings in Taxation Cause No.81/2023 on the basis of excessive claim principle as the amount taxed off exceeded one-sixth of the total amount of the bill of costs presented for taxation, the Respondent therefore did not deserve any costs of such taxation. 23 (c) Due to the implications of (b) to (a) above, the Respondent shall be entitled to TZS 64,692,995/= as costs in Taxation Cause No.81/2023. (d) As the Reference partly fails in other grounds, I make no order as to costs in the present Application. It is so ordered. Ruling is delivered in Court this 5th day of July 2024 in the presence of Mr. Jeremia Tarimo, learned Advocate for the Applicant and Mr. Yusuph Washokera the Respondent present in person. JUDGE 05/07/2024 24