OWEN SALEWA v GABRIEL GODWIN LEKUNDAYO

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA AT DAR ES SALAAM TAXATION CAUSE NO. 000017920 OF 2026 OWEN SALEWA .............................. COMPLAINANT / APPELLANT / APPLICANT / PLAINTIFF VERSUS GABRIEL GODWIN LEKUNDAYO .............................. RESPONDENT / DEFENDANT RULING MBADJO, DR This taxation arises from Civil Appeal No. 000023324 of 2025, in which the decree holder, Owen Salewa (the original defendant at trial), appealed against the decision of the Court of the Resident Magistrate of Dar es Salaam at Kivukoni in Civil Case No. 9224 of 2024, in which the judgment debtor, Gabriel Godwin Lekundayo (the original plaintiff), had been awarded general damages of Tshs 6,000,000/= on a claim of private nuisance arising from the decree holder's poultry-keeping activities. By a judgment of this Court (Mkwizu, J.) dated 15th May 2026, the appeal was allowed in its entirety, the Court finding, on ground after ground, that the alleged nuisance had not been proved to the standard required in law and costs of the appeal were awarded to the decree holder. Pursuant to that order, the decree holder lodged the present Bill of Costs, claiming a Sub-Total of Tshs 6,570,000/=, exclusive of the costs of prosecuting the Bill of costs itself. By an order of this court dated 23rd July Page. 1 2026, the parties were directed to argue the Bill by way of written submissions, the decree holder to file her submission in chief by 3rd August 2026, the judgment debtor to reply by 13th August 2026, and the decree holder to rejoin, if so advised, by 17th August 2026, with the matter to come for ruling thereafter. The record shows full compliance with that schedule. Both parties were represented by legal counsels, whereas the decree used the service of Mr. John Mushi and for the judgement debtor it is Mr. Kelvin Kidifu who appeared. The Bill, as lodged, comprises fourteen items, professional charges for instructions and attendance, disbursements, and the anticipated costs of prosecuting the Bill itself (the last correctly left blank in the body of the Bill for completion by the Taxing Officer, consistently with Order 55(3) of the Advocates Remuneration Order Mr Mushi, for the decree holder, submitted that Item 1 was properly charged at Tshs 6,000,000/=, being 10% of Tshs 60,000,000/=, the sum of the special and general damages claimed by the judgment debtor at the trial court, taxed under item 5 of the Ninth Schedule (8%–10% for sums between Tshs 30,000,000/= and Tshs 70,000,000/=), on the footing that this was a claim for a liquidated sum in appellate jurisdiction. On Items 2 to 6, he submitted that, the Ninth and Eleventh Schedules being silent on attendance costs, the Court should look to item 2(c)(iii)(a) of the Tenth Schedule, which he read as fixing ordinary attendances at Tshs 50,000/= per fifteen minutes; but that, because counsel's chambers at Masaki are some ten kilometres from this court, each attendance in truth costs “more than 30 minutes per trip” once travel is counted, justifying the doubled rate of Tshs100,000/= actually charged. On Items 7 to 9, he submitted the disbursements are court fees and undisputed. On Items 10 to 14, he submitted that a bill of costs is itself an “application” within item 1(m) of the Eleventh Schedule and, being opposed, should attract the fixed fee of Tshs 1,000,000/= provided at item 1(m)(ii) for opposed applications. Page. 2 Mr Kidifu, for the judgment debtor, did not dispute Items 7 to 9. He submitted, however, that the claim underlying the appeal was never a liquidated sum, For it being a claim for damages in the tort of nuisance, so that the Ninth Schedule had no application, and that a reasonable instruction fee in the circumstances was Tshs 300,000/=. Relying on Well Worth Hotels and Lodges Ltd v. East Africa Canvas Company Ltd and Others (Commercial Reference No. 5 of 2022) [2023] TZHCComD 10, he submitted that a liquidated amount must be “readily computed based on an agreement's terms” or “precisely determined by operation of law,” which general damages in tort are not. On attendance, he submitted the Eighth Schedule is applicable and not the Tenth schedule. That item 3(a) fixes the rate at Tshs 50,000/= per fifteen minutes, that this covers time spent in court and not time spent in transit, and that the doubled rate should accordingly be disallowed. Finally, invoking Order 48 of the Advocates Remuneration Order and John Momose Cheyo v. Stanbic Tanzania Ltd (Commercial Reference No. 72 of 2018) [2018] TZHCComD 2035, he submitted that the Bill as a whole was excessive and that the decree holder should, in consequence, be denied the costs of the taxation. In rejoinder, Mr Mushi maintained that the claim was liquidated because a specific figure, Tshs 60,000,000/=, had been pleaded by the judgment debtor at the trial court, and sought to distinguish Well Worth Hotels on the footing that the claim there, unlike here, was not liquidated. On attendance, he maintained that the Tenth Schedule rate of Tshs 50,000/= properly runs “from the moment the respective Counsel leaves his/her office for the Court and returns to the office,” justifying Tshs100,000/= for each appearance. On Order 48, he submitted that, the Bill having been claimed strictly within the scales provided by law, no item was in fact excessive, so the one-sixth rule could not be engaged; and that, in any event, Rule 48 required only the excessive portion of a claim to be disregarded, not the whole. Page. 3 Before turning to the Bill itself, it is useful to restate the principles that guide its taxation. Costs lie in the discretion of the Court, but that discretion and the Taxing Officer's own at this stage must be exercised judicially and not arbitrarily. Order 12 of the Advocates Remuneration Order, GN No. 263 of 2015 gives that discretion it states: the Taxing Officer “may allow such costs, charges and expenses as authorised in this Order or appear to him to be necessary or proper for the attainment of justice,” but “shall not allow any costs incurred or increased through over-caution, negligence or mistake.” Costs of taxation are accordingly compensatory, meant to reimburse costs actually and reasonably incurred, and are not to be used to unjustly enrich the party in whose favour they are awarded. A principle put in similar terms by the Commercial Division in Geofields Tanzania Limited v. Maliasili Resources Limited and Others (Misc. Commercial Cause No. 323 of 2015) [2016] TZHC COM D 8, where it was held that costs “are awarded not as a punishment of the defeated party but as a recompense to the successful party for the expenses to which he had been subjected,” being “like incidental damages allowed to indemnify a party against the expense of successfully vindicating his rights in court.” The Courts have said as much of the tariff itself. In Premchand Raichand & Another v. Quarry Services of East Africa Ltd & Others [1972] E.A. 162, ignoring the applicable scale without justification is recognised as a ground on which a taxing officer's award may be disturbed. A like principle was applied to a taxing officer's failure to apply the relevant scale in Steel Construction & Petroleum Engineering (E.A.) Limited v. Uganda Sugar Factory [1970] E.A. 141. In Thomas James Arthur v. Nyeri Electricity Undertaking [1961] E.A. 492, an error of principle, as distinct from a mere disagreement with the figure reached, was identified as the touchstone for interference with a taxing officer's exercise of discretion. Taken together, these authorities, a taxation that is neither a rubber stamp of what is claimed nor an exercise in trimming for its own sake: each item must be scrutinised against the scale and the work actually shown to have been done, any departure from the scale must be reasoned, and the exercise throughout remains Page. 4 discretionary but must be principled. It is with that approach that I turn to the Bill before me. Item 1 is on Instruction fee. I am unable to accept the decree holder's characterisation of this claim as one for a liquidated sum. A liquidated sum, as explained in Well Worth Hotels and Lodges Ltd v. East Africa Canvas Company Ltd and Others (supra), citing Black's Law Dictionary, is “a figure readily computed based on an agreement's terms,” or one that “can be precisely determined by operation of law.” The claim which gave rise to Civil Appeal No. 000023324 of 2025 was a claim in the tort of private nuisance: special damages of Tshs 10,000,000/=, which the trial court expressly found not proved at all, and general damages of Tshs 50,000,000/=, of which only Tshs 6,000,000/= was in fact awarded as an inherently discretionary sum, fixed by the trial court's own assessment and not by any agreement or formula. Neither component was “readily computed” from anything; both were, and remained, at large until the trial court fixed them in its discretion, and that discretionary award was in the end set aside in its entirety on appeal. Well Worth Hotels is accordingly not distinguishable on the ground urged in rejoinder; if anything, it is squarely on point. The Ninth Schedule's percentage-of-claim scale, being designed for liquidated sums, is not the correct instrument for this item. The correct provision is item 1(L) of the Eleventh Schedule to the Advocates Remuneration Order, G.N No 263 of 2015, which commits the instruction fee to not more that 1,000,000/=. I do not, however, accept the judgment debtor's proposed figure of Tshs300,000/= either; as the decree holder's rejoinder rightly points out, that figure is not shown to rest on any provision of the Order or any authority, and it understates the work in fact shown to have been done. The appeal raised nine grounds, was fully briefed by both counsel through written submissions citing a substantial body of authority, and resulted in the trial court's judgment being set aside in its entirety. That is genuine work, reflecting real skill and responsibility, even though it was disposed of on the papers rather than at an oral hearing. Weighing these considerations, I tax the instruction fee at Tshs 1,000,000/=. Page. 5 Items 2 to 6 are on attendance. Both counsels, in the end, point to the same rate: “ordinary cases of 15 minutes or part thereof, Tshs 50,000/=,” whether reached under item 2(c)(iii)(a) of the Tenth Schedule or item 3(a) of the Eighth Schedule. Neither provision, nor any other before me, makes separate allowance for time spent travelling to and from court, and I am not persuaded that one should be read in by implication merely because counsel's chambers are some distance from this court; Order 12 of the Order, which permits the Taxing Officer to allow costs “necessary or proper for the attainment of justice,” does not extend to costs that have no textual footing in the applicable scale. I have, satisfied myself against the proceedings record in Civil Appeal No. 000023324 of 2025 that the decree holder's advocate did in fact appear on each of the five dates billed. That is 24th November 2025, 27th January 2026, 27th March 2026, 10th April 2026 and 15th May 2026, the last two of these being occasions on which judgment, though listed, was in fact adjourned before it was finally delivered on 15th May 2026; each is a genuine attendance on the record and properly chargeable at the standard rate. Items 2 to 6 are accordingly each taxed down to Tshs 250,000/=and Tshs 250,000/= is taxed off. Items 7 to 9 are on disbursements. These are undisputed, receipted, and verifiable against the control numbers stated. They are taxed as claimed, Tshs 70,000/= in total. Items 10 to 14 are on costs of prosecuting this, Bill. Item 10, the filing fee actually paid to lodge this Bill (control no. 991401634997), is a court fee properly proved on the record, and is allowed at Tshs 40,000/=. Items 11 to 14, however, are the professional and attendance components of prosecuting the taxation, and fall to be considered against Order 48 of the Advocates Remuneration Order, to which I now turn. Order 48 of the Advocates Remuneration Order is the one-sixth rule. Order 48 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 Page. 6 taxation,” subject to a proviso, noted in John Momose Cheyo v. Stanbic Tanzania Ltd (supra), permitting the Taxing Officer to disregard the instruction fee item when computing the one-sixth. Taking Items 1 to 6 together (Tshs 6,500,000/= claimed, exclusive of the court-fee disbursements at Items 7–9), the disallowance above, Tshs 5,250,000/= is well in excess of one-sixth of that sum (Tshs 1,083,333/=). Even if, applying the Cheyo proviso, the instruction fee is disregarded altogether and the computation confined to Items 2 to 6 alone, the disallowance on attendance (Tshs 250,000/= against Tshs 500,000/= claimed) still exceeds one-sixth of that reduced sum (Tshs 83,333/=). On either view, the threshold is breached, and the consequence prescribed by Order 48 is mandatory rather than discretionary. I do not accept the decree holder's submission that no item was in fact excessive; for the reasons given above, both Item 1 and Items 2–6 were substantially overstated. Items 11 to 14 are accordingly disallowed and taxed off; the decree holder not being entitled to the costs of this taxation. This finding does not disturb Item 10, which is a court fee and stands outside the Order 48 computation, nor does it disturb the decree holder's substantive entitlement to the costs of the appeal itself, reflected in Items 1 to 9. For the foregoing reasons, it is ordered that: (i) The Bill of Costs is taxed at a Grand Total of Tshs 1,360,000/=only. It is so ordered. Dated at DAR ES SALAAM this 27th of August 2026 . A. H MBADJO TAXING OFFICER Page. 7