MUSTAPHA KONDO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (DAR ES SALAAM SUB- REGISTRY) AT PAR ES SALAAM CIVIL REFERENCE NO. 28097 OF 2023 (Arising from Ruling and Drawn Order in Taxation Cause No. No.60 of 2022 before Hon. Rugemalila, PRM dated 29th November, 2023) RAHIM MUSTAPHA KONDO......................................................... APPLICANT VERSUS LUCY CILIAN NDESAMBURO...................................................RESPONDENT RULING 30th Sept. & 16th Oct. 2024 DYANSOBERA, J,: This reference seeks to impugn the decision of the Taxing Officer in the Taxation Cause No. 60 of 2022 dated 29th November, 2023. The reference was instituted by way of a chamber summons pursuant to O. 7 (1) and (2) of the Advocates Remuneration Order, 2015 and it was taken at the instance of the Applicant and supported by an affidavit deponed by Rahim Mustapha Kondo, the applicant. The hearing of this reference was through written submissions whereby Ms. Mercy Kaasa, learned advocate, filed submission in chief for i the applicant. On 20th August, 2024, this court entered a scheduling order to file written submissions. While the applicant duly filed his written submission in chief in support of the reference, the , Applicant was ordered to file his written submission in chief by 3rd September 2024, the respondent to file her reply on 17th September 2024 and rejoinder if any by 24th September 2024. The applicant duly complied with the schedule of filing his respective submission while the respondent did not file her reply. Hence the matter was heard exparte. Arguing in support of the reference, regarding the first ground that trial Magistrate wrongly exercised her discretion power awarding 2,490,000/= while no evidence was tendered in respect to item 8 of the Bill of Costs contrary to the law. Counsel for the applicant argued that Item 8 of the Bill of Costs contains what the Respondent terms as miscellaneous expenses being stationery, typing, printing, photocopy etc. Under this item the Taxing Master awarded shillings 100,000/= contrary to Order 58 of the Advocates Remuneration Order, 2015 GN No. 263 of 2015 which requires voucher or receipts to be produced. Only printing costs supported by vouchers as per item 2 (c) of the 11th schedule are allowed. The Respondent did not either produce voucher or receipts hence this item 2 ought to have been rejected in total. Therefore, prayed this court to allow this ground on the above stated reasons. On the second ground that the trial Magistrate failed to take into consideration of the fact that more than 4 of the total amounts of Bill of Costs was exclusive then the Respondent (the party who presented the Bill of Costs) was not entitled to the costs of such taxation. Counsel for the applicant argued that under Order 48 of the Advocates Remuneration Order, 2015 provides that if more than % of the total amount of Bill of Costs exclusive of the court fee is disallowed, the party presenting the bill for taxation shall not be entitled to the costs of such taxation. The Taxing Master disallowed the total sum of shillings 4,830,000 from the amount claimed of shillings 5,900,000/= excluding shillings 20,000/= which is the court fee. Counsel for the applicant complained that the Taxing Officer taxed the Bill of costs at shillings 1,420,000/= plus shillings 20,000/= as court fees. It was submitted that the total amount which was disallowed (Tshs 4,830,000/=) is more than % of the total amount claimed exclusive court fee which is 5,900,000/=. She stated that the % of 5,900,000/= is shillings 983,333.30 and amount disallowed is 4,830,000/=which is more than 1/6 hence the Taxing Officer erred in law to award fee for attending Bill of Costs at shillings 1,070,000/=. It was therefore prayed that this court to allow this ground by taxing off this amount of shillings 3 1,070,000/=. as the per the cited law. Regarding to the third ground it was submitted that the Bill of Costs was confused and inconsistency as the Bill of Costs claims shillings 4,920,000/= while at the conclusion of the submission the Decree holder claims 2,500,000/=. The Advocate remuneration Order prohibits claim of the Costs for taxation. That the same was contrary to Order 13 and 39 of GN No. 263 of 2015, the trial Taxing Officer to have refused to grant costs for taxation. Therefore, prayed this application be granted with costs. I have carefully considered the arguments put forward by the applicant counsel, the issue for determination is whether this application has merits. In his submission he submitted that taxing officer wrongly awarded Tshs. 100,000/- for printing, typing, photocopy, stationary etc. contrary to order 58 of the Advocate Remuneration Order which requires voucher or receipts to be produced. Respondent did not produce voucher or receipts hence this Item 8 of the Bill of costs has to be rejected. On my part I have gone through the cited order it written as hereunder: "Receipts or vouchers for all disbursements charged in a bill of costs (other than witness allowances and expenses supported by a statement signed by an advocate) shall be produced at taxation if required by the taxing officer". The above cited provision requires receipts or vouchers if taxing officer needed it. I have gone through the proceedings I did not see anywhere the taxing officer required the decree holder to produce such receipts or 4 voucher. In addition to that taxing officer in her decision she stated the criteria that will apply in taxing the application at hand, where one of it is discretion, this court hold that the discretion was properly exercised by awarding 100,000/- for printing, typing, photocopy, stationary. Therefore, this ground has no merit. On the second ground of appeal which centered on Rule 48, where he argued that where more than 1/6 of the total amount disallowed taxing officer cannot grant cost of such taxation. He submitted that the total amount claimed was 5,900,000/- where taxing master awarded 1,420,000/- which is more than 1/6 to him the whole amount should not be taxed. I am in agreement of the position of law Order 48 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 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 taxed of that fee in the computation of the one sixth". My brother Hon. Gwae, J. had a scenario like mine where he went further to discuss the essence of awarding instruction fee. Where in the case of Julius Mwarabu v. Ngao Godwin Losero, Civil Reference No. 4 of 2020, High Court of Tanzania at Arusha, (Unreported) he had this to 5 say; "The essence of having this provision of the law in place is a prohibition of exaggeration or inflating costs of cases by litigants who aim at enriching themselves in eases where they emerge victories. However, in my view, that discretion should be applied in special circumstances. I am saying so simply because there is no dispute that, the applicant enjoined legal services from a private advocate and not from legal aid or on pro bono basis, in our instant case, it is evidently dear that the DR. opined to dismiss the applicant's bill of costs after he had arrived at the bill of Tshs. 999,000/=far beyond one-sixth of the presented bill (Tshs. 4,899,000/=)." Looking at the essence of awarding instruction fee which is not to enrich the judgment debtor but rather to reimburse for the cost incurred. Since the decree holder was represented and there is no dispute on that fact, he paid for his advocate reimbursement by judgment debtor is something that cannot be escaped so long as it was awarded under discretion of the taxing officer. My decision cannot differ with my brother's position cited above and I hold that it was exercised judiciously. This ground also has no merits. On the third ground he submitted that the Bill of Cost was confused and inconsistency. He submitted that the claim under bill of cost is 4,920,000/- while the conclusion of the submission the decree holder prays for 2,500,000/- he submitted that this is contrary to Order 13 and 39 of Advocate Remuneration Order. I have gone through the complained pleadings where indeed the 6 claimed amount was 4,920,000 as started by the applicant, I have also gone through the decision of Taxing Officer it also centered on the amount claimed at the Bill of cost. To me I have perused the cited Order 13 and 39 of the Advocate Remuneration Order which provides that: "13. An advocate shall not agree or accept remuneration more than that provided by this Order". "39. Bills of costs shall be drawn in accordance with scales provided in the Schedules to this Order". Looking at the cited provisions I don't see the relationship on the argument of the applicant with the provision of the law cited. Therefore, this ground has no merit as the applicant did not show how this related to the case at hand. In the instant case, I find nothing warranting this court to interfere with the award by the taxing officer. It is so ordered . I P. Dyansobera JUDGE 16.10.2024 This ruling is delivered under my hand and the seal of this Court on this 16th day of October, 2024 in the presence of /flhe applicant in person but in the absence of the respondent Wj) 7