Ruling Civil Reference No

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT MOSHI CIVIL REFERENCE NO. 13502 OF 2024 (C/F Taxation Cause No. 183 of 2023. Originating from Application No. 119 of 2022 in District Land and Housing Tribunal for Moshi at Moshi) RABISANTE SAMSON KILEO……………………….…….……..APPLICANT VERSUS TOMAS GODFREY KILEO………….………………………….RESPONDENT RULING 30th October & 10th December, 2024 MONGELLA, J. This matter emanates from the District Land and Housing Tribunal (the Tribunal, hereinafter) whereby the applicant lodged Application No.119 of 2022. The Application was struck out at the earliest stage following a preliminary objection decided in favour of the respondent. Afterwards, the respondent filed Taxation Cause No. 183 of 2023 in the Tribunal claiming a total of TZS. 3,024,000/-. In an ex parte Ruling the Taxing Master awarded the respondent costs amounting to TZS. 2,334,000/-. Aggrieved, the applicant has filed this reference. Page 1 of 14 Hearing of this reference proceeded by written submissions whereby both parties enjoyed legal representation from learned counsels. The applicant was represented by Mr. Elisante T. Kimaro and the respondent by Ms. Juliana A. Mushi. Challenging the award of costs, Mr. Kimaro averred that the costs claimed and awarded in the Bill of Costs were excessive. He lodged another complaint that the applicant was not accorded the right to be heard. Mr. Kimaro continued to argue that in awarding instruction fees, a Taxing Master must observe four principles as set down in Premchand Raichand vs. Quarry Services [1972] E.A 162, which were also applied in a recent case of VIP Engineering & Marketing Ltd vs. CityBank Tanzania Limited (Civil Application 24 of 2019) [2021] TZCA 112 (14 April 2021) (14 APRIL 2021) TANZLII. He stated the said principles to be: 1. That Costs shall not be allowed to rise to such a level as to confine access to the Courts to only the wealthy; 2. That the successful litigant ought to be fairly reimbursed for the Costs he reasonably incurred; 3. The general level of the remuneration of advocates must be such as to attract worthy recruits to an honourable profession and 4. That there must, so far as is practicable, be consistency in the awards made, both to do justice between one person and another and so that a person contemplating litigation can be advised by his advocates very approximately what, for the kind of case Page 2 of 14 contemplated, is likely to be his potential liability for Costs. Referring to what transpired in court, Mr. Kimaro alleged that the claimed instruction fees and other costs were to the tune of TZS 3,024,000.00. out of that amount, he said, the Tribunal awarded TZS. 2,324,000/- which was contrary to the four guiding principles and item 1(m)(ii) of the 11th Schedule and Order 48 of the Advocates Remuneration Order, 2015. He contended that the instruction fee ought to be TZS. 1,000,000/, as the bill emanates from an opposed application. in his view, costs awarded by the Hon. Chairman were intended to confine access to justice to the wealthy. He insisted that instruction fees are meant to adequately compensate an advocate for the work done in preparation and conduct of a case and not to enrich him. He fortified this averment with the case of Smith vs. Buller [1875] 19. E9.473 which was referred to in Rahim Hasham vs. Alibhai Kaderbhai [1983]1 T.L.R 676. Mr. Kimaro argued that since the Bill of Costs was exaggerated, the remedy is that the respondent would not be entitled to costs of the taxation as provided under Order 48 of the Advocates Remuneration Order, 2015. He insisted that the award was above the scale and offends principles set out in the law. Referring to the case of Tanzania Rent a Car Limited vs. Peter Kimuhu, (Civil Reference No. 09 of 2020) [2021] TZCA 103 (06 April 2021) TANZLII; he prayed for the entire Bill of Costs in Taxation Cause No. 183 of 2023 to be disallowed. Page 3 of 14 Mr. Kimaro further argued that item 3(a) of the 8th Schedule to the Advocates Remuneration Order does not apply to allocation of transport fee but rather is on scales of fee in respect of businesses whose remuneration is not prescribed. In that regard, he contended that attending Court session is not covered in the said Schedule and the respondent could not claim the same. He thus challenged the claimed costs under items 2 to 11 of the Bill of Costs for including instruction fees. He further faulted the award of transport costs on 12.07.2023 under item 2 which was stated to be for mention. He stated that by then, Application No. 119 of 2022 had already been dismissed on 05.07.2023. As for item 3 on the date of 04.01.2023, he alleged that the date was a weekend, thus not true. Considering the situation, he alleged that the Bill of Costs was fabricated and forged, hence should be dismissed. As to the complaint on the right to be heard, Mr. Kimaro alleged that the applicant was denied the right to be heard because despite seeking to be served with the applicant’s submissions, he was not served. He fortified his averments with Article 13(6)(a) of the Constitution of the United Republic of Tanzania. 1977; the case of Jebra Kambole vs. The Attorney General, Miscellaneous Civil Cause No 32 of 2015, HC. (unreported)and that of Abbas Sherally and Another vs. Abdul S. H. M. FazaI boy, Civil Application No. 33 of 2002 (unreported). He finalized his submission on this point by praying for the Bill of Cost to be determined de novo. He as well prayed for costs. Page 4 of 14 Ms. Mushi commenced her reply submission referring to Order 12(1) of the Advocate Remuneration Order, 2015, which directs the Taxing Officer to allow such costs, charges and expenses as authorized in the Order or appear to him to be necessary or proper for the attainment of justice. In her view, what was awarded as advocate’s instruction fee to defend the respondent was not excessive and the Taxing Officer rightly and judicially exercised his powers when awarding the said TZS. 1,500,000/=, taking into account the complexity of the case, amount of research work involved and the documents filed. Ms. Mushi further cited the case of Bahati Moshi Masabile t/a Ndono Filing Station vs. Camel Oil (T) (Civil Appeal 216 of 2018) [2019] TZHC 275 (10 July 2019) TANZLII, which she said provided the rationale of awarding costs. She explained that in the said case, the Court stated that costs serve among other purposes, to bar a party from filing hopeless cases. She added that there are two reasons being; first, upon losing the case the loser will pay costs of the case which weakens the loser financially. Second, the award of costs puts the wining party at his/her financial position prior to being sued as far as costs of the case are concerned. Explaining the reason behind, she said it is for the wining party to be refunded all the cost incurred during the trial of the case. She further averred that the amount of TZS 1,500,000/- as instruction fees cannot be termed excessive simply because the matter did not proceed to a full trial, but ended on preliminary objection. She contended that the matter ending on a preliminary objection was Page 5 of 14 not an anticipated course of action on the part of the respondent. That, she had already prepared for trial so it was irrelevant that the matter was resolved on an objection. She cemented her point with the case of Ujagar Singh vs. The Mbeya Cooperative Union [1968] HCD No. 173. She added that a client who pays an advocate anything not exceeding a liquidated claim cannot be said to have over charged or engaged excessive costs. Ms. Mushi insisted that the amount awarded took into account the nature of the case and work input it required. In the premises, she found the assessment of the amount by the Taxing Officer justified in exercise of his discretion. She therefore prayed for this Court to uphold the decision of the Taxing officer and dismiss this application. Arguing further, Ms. Mushi made reference to Item 3 (a)(c) of the 8th schedule of the Advocates Remuneration Order of 2015, which requires the charging of TZS. 50,000/= for each fifteen minutes or TZS. 300,000/= for an hour spent by the advocate in court for attendance. She also referred to Item 1(m)(a) of the Eleventh Schedule of the Advocate Remuneration Order 2015, which requires the taxing officer/master to take into consideration other fees and allowances to an advocate in respect of the work, nature and importance of the matter and general conduct of the proceedings and allow other circumstances. She averred that since the respondent travelled from her office to the Tribunal for mention, hearing and delivering of ruling of the preliminary objection for ten days, costs for transport were incurred. Page 6 of 14 Considering her arguments, she insisted that the taxed amount for attendance in the Tribunal for those ten days is within the remuneration scale and therefore there was no law offended. Addressing the claim that the applicant was denied the right to be heard, Ms. Mushi explained that on 05.03.2024, the applicant under Mr. Kimaro’s representation, appeared for first mention in Taxation Cause No. 183 of 2023 before Hon. H. I. LUKEHA. She averred that it was then that the parties agreed to dispose the matter by written submissions and the Tribunal made such orders. She explained further that on 19.03.2024, the respondent (the applicant in the Taxation Cause) filed his written submission in support of the application for Taxation Cause No.183 of 2024. That, on 02.04.2024, the applicant failed to file his reply submission. That, on 15.04.2024, when the matter came for mention, the applicant sought for extension of time to file his reply submission and was given 14 days. She contended that, despite being given an extension of 14 days to file his reply submission, the applicant did not comply with the said order. Then, she said, matter came for Ruling on 17.05.2024 and the applicant did not say anything before the Tribunal. Consequently, the Ruling was delivered ex-parte with costs. In the circumstances, Ms. Mushi had the stance that the applicant waived his right to be heard by failing to comply with the Tribunal order for filing written submission upon being extended time. She fortified her stance with Page 7 of 14 the case of Khalid Mwisongo vs. M/S Unitrans T. Ltd (Civil Appeal 56 of 2011) [2012] TZCA 10 (20 April 2012) TANZLII. As to the accusation on dates being wrong, Ms. Mushi alleged that the same was simply a typing error of which may be cured by the overriding objective principle enshrined under Section 3(1) (2), 3(1) of the Civil Procedure Code [Cap 33 R.E 2019]. On the other hand, she contended that the trial Tribunal record clearly shows that on 07.12.2022, the parties attended the Tribunal for mention and not on 07.12.2023 as indicated on item no. 2. Further, she alleged that on 04.02.2023 the parties attended the Tribunal for mention and not on 04.01.2022 as indicated on item no. 3, She thus prayed for the provisions of Section 3A and 3B (1) of the Civil Procedure Code to be invoked. Ms. Mushi further referred the case of Alliance One Tobacco Tanzania Limited & Another vs. Mwajuma Hamis (as the administratrix of the Estate of Philemoni R. Kilenyi & Another, Misc. Civil Application No. 803 of 2018, in which this Court declined to dismiss the application on ground of wrong citation of the law as it had jurisdiction to determine the matter. She reiterated her stance that the claim by the applicant that the Ruling was fabricated and forged cannot be sustained because the typing error can be cured through the overriding objective principle. So, she finalized her submission by praying for the application to be dismissed with costs. I have accorded the rival submissions by the learned counsels for both parties due consideration. The applicant challenges the costs Page 8 of 14 awarded in Taxation Cause No. 183 of 2023 for being excessive and unwarranted in some areas. He has specifically challenged two areas being the instruction fee and the transportation fee awarded. The applicant also alleged that the he was denied the right to be heard. As the issue on the right to be heard has the effect of nullifying proceedings in Taxation Cause No. 183 of 2023, I shall address it first. It is well settled that the right to be heard is a rule of natural justice and a fundamental right recognized in our Constitution. When such right is violated, the decision reached therein is marked a nullity even if the same decision would have been reached had the parties been heard. This was well expounded in the case of Charles Christopher Humprey Kombe vs. Kinondoni Municipal Council (Civil Appeal No. 81 of 2017) 2020 TZCA 1932 (12 June 2020), whereby the Court of Appeal reverted its holding in the case of John Morris Mpaki vs. NBC Ltd and Ngalagila Ngonyani, Civil Appeal No. 95 of 2013 (unreported) in which it observed: "The law that no person shall be condemned unheard is now legendary. It is trite law that any decision affecting the rights or interests of any person arrived at without hearing the affected party is a nullity, even if the same decision would have been arrived at had the affected party been heard. This principle of law of respectable antiquity needs no authority to prop it up. It is common knowledge.” See also: Mbeya -Rukwa Autoparts & Transport Limited vs. Jesca George Makyoma [2003] T.L.R 251; Abbas Sherally and Another vs. Page 9 of 14 Abdul S. H. M. FazaI boy (supra) and CRDB Bank PLC vs. The Registered Trustees of Kagera Farmers Trust Fund & Others (Civil Appeal No. 496 of 2021) [2024] TZCA 94 (23 February 2024) TANZLII. Mr. Kimaro alleged that the applicant was denied opportunity to present his written submission. As averred by Ms. Mushi, it is apparent on record that the applicant was afforded not one, but two opportunities to file his reply submission. The first opportunity was accorded on 05.03.2024 when the schedule to dispose the taxation by written submissions was fixed. He was required to file his submissions on 02.04.2024, he however defaulted. The second opportunity was accorded to him on 15.04.2024 when he requested for an extension of time to file his reply submission. He was given a 14 days extension, but again defaulted. As pointed out by Ms. Mushi, when the matter came for Ruling on 17.05.2024, despite being present, he did not offer any explanation or made any request before the Tribunal. The Ruling was then delivered ex parte against him. However, even thereafter, he made no attempt to seek the Ruling be set aside. In foregoing observation, I find it clear, the applicant was accorded the right to be heard, but sat on it. The law cannot help a party who sits on his rights. As he waived his right to file his reply submission, the applicant’s claim of being denied the said right epically fails. Concerning the complaint on instruction fees, it appears on record that under Item 1 of the Bill of Costs, the respondent claimed TZS. Page 10 of 14 2,500,000/-. The Taxing Master awarded him TZS. 1,500,000/= considering that the suit had been disposed at the earliest stage. It is apparent on record that indeed, the suit was disposed at an early stage owing the preliminary objection raised by the respondent. It is settled that award of instruction fees is within discretion of the Taxing Officer and the same cannot be easily interfered unless it is un-judicially exercised. This was expressly stated in the case of The Attorney General vs. Amos Shavu, Taxation Reference No 2 of 2002 (unreported). In the case, the Court held that: "As general rule the allowance for instruction fee is a matter peculiarly in the taxing officer's discretion and courts are reluctant to interfere into that discretion unless it has been exercised un-judicially” I am aware that the guiding principles in awarding instruction fees were well stated in the case of Premchand (supra) and as reproduced in VIP Engineering (supra), which I have listed hereinabove and do not wish to reproduce the same. In awarding costs, the taxing master is expected to observe several details. Some of such details were well provided in the case of Kitinda Kimaro vs. Anthony Ngoo Another (Civil Reference No. 6 of 2016) 2018 TZCA 493 (13 July 2018), whereby the Court of Appeal stated: “It is trite law that instruction fee is supposed to be compensated adequately to an advocate for the work done in the preparation and conduct of a case. The greater the amount of work involved, the complexity of the case, the time taken by an advocate hearing of arguments in the case, as Page 11 of 14 factors to be taken into account in determining the appropriate instruction fee in any given case. The overriding principle has always been that "costs should not be excessive or oppressive but only such as necessary for the conduct of the litigation.” See Also Tanzania Rent a Car (supra). Contrary to the arguments presented by Mr. Kimaro, instruction fees for defending proceedings in a suit are fixed under Item 1(d) and not Item 1(m) of the 11th Schedule to the Advocates Remuneration Orders. The award of such fees is fixed at the Taxing Officer’s discretion, the minimum value being TZS. 1,000,000/-. The record in this matter shows that the matter was dismissed at the earliest point vide a preliminary objection. So, at this stage, the respondent had only prepared the written statement of defence. I do take note the decision in Ujagar Singh (supra) where it was considered irrelevant that the matter did not proceed for hearing as preparation for the same was sufficient. However, considering the preliminary objection on which the matter was disposed on and the fact that the application was only struck out for simply non description of the suit land, I am of the view that only the minimum value should have been fixed, which is TZS. 1,000,000/- as the work on defence was not as complex as alleged by Ms. Mushi. I therefore reduce the instruction fees from TZS. 1,500,000/- to TZS. 1,000,000/-. With respect to transport costs, the applicant advanced a concern that the Taxing Master erroneously relied on Order 3 (a) of the Eighth Schedule to the Advocates Remuneration Order. I have observed Page 12 of 14 the provision and I find the same irrelevant in this matter. The Schedule provides for business whose remuneration is otherwise not prescribed. I thus find this rather being fixed for corporate scenarios than Court scenarios. In that sense the Taxing Master erroneously applied the provision. As to the applicant’s averment on transport fees being covered in instruction fees; I do not wish to dwell much on this issue. Transport costs are simply not and cannot be covered under instruction fees. There are many variables in question. Example, how would one know the number of sessions he would have to attend before the matter is concluded. The risk would be overcharging and undercharging of clients, which would affect the client and the advocate respectively. The award of attendance fees is per the discretion of the Tribunal. I find the value of TZS 50,000/- allocated per day was very reasonable as it is in accordance with the law. However, I have noted some anomalies in some items awarded. Under Item 2, the respondent noted that the matter was mentioned on 07.12.2023. I have observed the record and it appears that the use of the year 2023 was an error as the correct date was 07.12.2022. However, none of the parties entered appearance on the said date. I thus tax off this bill. I also found that the respondent and her Counsel were absent on 02.05.2023. In fact, on the said date, one, Advocate Fredy Kimaro held the brief for Ms. Mushi. In the premises, this bill is also taxed off. Page 13 of 14 There were no proceedings conducted on 08.03.2023 covered under Item 04. This claim is also taxed off. As for costs for attending the Tribunal for Misc. Application No. 237 of 2022 charged under item 05, I tax off that claim as the application was dismissed without costs. I maintain the attendance costs awarded for the dates: 04.01.2023, 06.03.2023, 04.04.2023, 25.05.2023, 03.07.2023 and 05.07.2023, which amounts to TZS. 300,000/=. With the effected alterations; the instruction fee awarded is TZS. 1,000,000/; attendance fee TZS. 300,000/; disbursements TZS. 24,000/- and costs for attending the taxation cause TZS. 300,000/-, making a total of TZS. 1,624,000/-. The applicant further alleged that the costs claimed were excessive and should be disallowed pursuant to Order 48 of the Advocates Remunerations Order. Excluding the instruction fees and court fees, the disallowed costs in the claimed fees do not sum up to one-sixth of the Bill. This renders the respondent entitled to costs allowed in Taxation Cause No. 183 of 2023. In foregoing observations, the reference is allowed to the extent stated herein. Each party to bear his own costs. Dated and delivered at Moshi on this 10th day of December, 2024. X L. M. MONGELLA JUDGE Signed by: L. M. MONGELLA Page 14 of 14