registered trustees of masjid mkongwe vs atumani nyumaniki 5 others 2022 tzhclandd 512 29 june 2022

IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM REFERENCE NO. 5 OF 2022 (Arising from the decision of Taxing Master Hon. W. Hamza dated 31st March, 2022 in Taxation Cause No. 14 of 2021) REGISTERED TRUSTEES OF MASJID MKONGWE.......... APPLICANT VERSUS ATUMANI NYUMANIKI & 5 OTHERS................................. RESPONDENT RULING Date of last Order: 15.06.2022 Date of Ruling: 29.06.2022 A.Z.MGEYEKWA, J This is a reference that emerged from a ruling of a Taxing Master, Hon. W. Hamza. The application is made under Order 7(2) and (3) of the Advocates Remuneration Order GN.264 of 2015. The application is supported by an affidavit deponed by Ubaidi G. Hamidu, the applicant’s Advocate. 2 The application has encountered formidable opposition from the respondents and they have demonstrated their resistance by filing a joint counter affidavit deponed by Dickson Paulo Sunga, the respondents’ Advocate. When the matter was called for hearing on 15th June, 2020 the applicants enjoyed the legal service of Mr. Hamidu, learned counsel, and respondents had the legal service of Mr. Noel Sanga, learned counsel. The Court acceded to the respondent’s Advocate's proposal to have the matter disposed of by way of written submissions. The appellant filed his submission in chief on 20th June, 2022. The respondent filed his reply on 22nd June, 2022 and the respondent filed his rejoinder on 27th June, 2022. Both parties complied with the court order. In his submission, Mr. Hamidu started with a brief background which I am not going to address in the application at hand. Mr. Hamidu contended that examining the Taxing Master taxed the application contrary to the law governing the process. To support his submission he referred this court to the Advocates Act, Cap. 341 [R.E 2019] and the Advocates Remuneration order and submitted that the bill of costs is statutory taxed and the matter which led to the amount to be seen 2 3 excessive emanated from Application No. 49 of 2012. He submitted that in the Application No. 157 of 2020, the Decree-Holder was awarded costs. He added that the Taxing Master consumes a discretionary power on the taxing bill of costs, however, there are circumstances that need to be taken into consideration before taxing the bill, such as the value of the subject matter, the complexity of the suit, and whether the suit is contentious or non-contentious as the instant case. Mr. Hamidu went on to submit that the Taxing Master may award a high remuneration to the advocate than that prescribed by the law but should be the special grounds to do so. Supporting his submission, he referred this Court to section 47 of the Advocate Act, Cap. 341 [R.E 2019]. The learned counsel for the applicant continued to argue that in the instant matter the above-mentioned grounds were not cropped on material time and thus was no mindful reason for the Taxing Master to exceed the amount prescribed by the law. Fortifying his submission he cited the case of Edina Chambili (supra). With respect to the costs for court attendance, the learned counsel for the applicant lamented that the Taxing Master awarded an excessive amount to the tune of Tshs. 550,000/= contending to be costs for attending court contrary to section 55 (3) of the Advocates Act, Cap. 341. 3 4 Stressing on the point of attendance to the court fee, he contended that the amount was very disproportionate due to the fact that the attendance of one day cannot cost much as if it was an application. To buttress his submission he referred this court to the case of Edna Chambili (supra). In conclusion, the learned counsel for the applicant, beckoned upon this court to grant the reference as the amount contenting to be excessive to the extent that conforms to the prescribed amount with costs. In reply, the respondent's confutation was strenuous. He came out forcefully and defended the Taxing Master decision as sound and reasoned. Mr. Noe! started to narrate the genesis of this application which I am not going to reproduce in this application. Mr. Sanga contended that the instruction fee in Taxation Cause No. 14 of 2021 was judiciously taxed by the Taxing Master because it was taxed based on the discretion of the taxing officer. He contended that the taxes are based on the nature of the case, importance of the case, the amount of money involved, the interest of the parties, the general conduct of the proceedings and all relevant circumstances, time taken in handling the matter, and amount of research involved on the matter. Supporting his submission he referred this court to 11th Schedule Item (m) and Order 12 (1) of the Advocates 4 5 Remuneration Order, 2015 and the cases of Miraji Mpira v Unliver Tea (T) Ltd & Another, Taxation Case No.15 of 2016 and VIP Engineering and Marketing Limited v IPTL, Taxation Reference No. 15 of 2005. He added that the instruction fee of Tshs. 5,000,000/= was based on the direction of the Taxing Master when considering the circumstances of Land Appeal No. 154 of 2018 which was complex, more energy was used in conducting research, the matter took a long time, for example, two years to be finalized, the respondent did not enjoy their rights over the suit plot since they lost income for 8 years from 2012 when the Land Appeal No. 154 of 2018 was lodged when the judgment was delivered in favour of the respondents. I have given careful deliberation to the arguments for and against the application herein advanced by both learned counsels and it is the right time to resolve the controversy. I will determine the issue whether the application is meritorious. The first ground is concerning the computation of the quantum of the instruction fees. The applicant’s Advocate in his written submission stressed that the instruction fee was not contrary to the law governing the taxation for Bill of Costs as stipulated under the Advocates Remuneration 5 6 Act specifically the 11th Schedule of the Advocates Remuneration Order item (m). For ease of reference, I reproduce item (m) as hereunder:- “ 1. The fee for instruction in the suit shall be as prescribed in these orders:- (m) For applications, notices of motion or chamber applications, (Including appeals from taxation) (i) Un-opposed Tshs. 500,000/= (ii) Opposed Tshs. 1,000,000/= In the matter at hand, the Taxing Master taxed in Tshs. 5,000,000/=. I am in accord with Mr. Hamidu that the relevant scale for contentious proceedings is Tshs. 1,000,000/=. The application at hand emanated from the contentious application therefore the proper prescribed scale was Tshs. 1,000,000/= for contentious matter. The Taxing Master used her discretionary power in taxing in Tshs. 5,000,000 and her justification was due to the nature of the case which took more than two years and the value of the subject matter. The learned counsel complained that the pending or duration of hearing the case at the court is not the fault of the applicant. I do agree that the applicant was not one to be blamed for the delay in hearing the case. Therefore, somehow the instruction fee was on the high side 6 7 because the Taxing Master did not clarify the complexity of the case to justify how she taxed in the instruction fee of Tshs. 5,000,000/=. For the sake of clarity, I have read the case of Miraji Mpira (supra) (supra) and VIP Engineering (supra). In the cited cases, the Taxing Masters justified the nature of the case and its complexity. In the instant case, unlike the cited case cases, the Taxing Master justified the nature of the case which was an appeal, however, she did not justify its complexity. Therefore, 1 fully subscribe to the submission of Mr. Hamidu that the instruction fee was high compared to the nature of the case at hand. Next for consideration is the second ground; the issue of costs for attendance. The record reveals that the respondent served the applicant through the court process server on 25th August, 2021 and the matter was set for hearing on 10th November, 2021 the Taxing Master heard the application. The learned counsel for the respondent appeared in court 11 times as per items 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, and 12. The cited case of Edina (supra) supports the Taxing Master's findings, the decree-holder was entitled to be paid Tshs. 50,000/= per 15 minutes and he appeared in court 11 times. 7 8 Reading the ruling of the Taxation Master it is vivid that the amount taxed in was proportional due to the fact that the attendance of 11 days in court amount to Tshs. 550,000/=. Concerning the instruction fee, the amount taxed in was high, therefore, I proceed to tax off Tshs. 1,000,000/= from the instruction fee. The Instruction fee is taxed in to the tune of Tshs. 4,000,000/=. In the final result and for the foregoing reasons, the reference partly succeeds to the extent as afore stated. The respondent is awarded a total of Tshs. 5,070,000/= as Bill of Costs in Taxation Cause No.14 of 2021. Order accordingly. DATED at Dar es Sajaam this 29th June, 2022. rZ.MGEYEKWA JUDGE £ Ruling delivered on ^June, 2022 in the presence of Mr. Ubaidi Hamidu, learned counsel for the applicant and Mr. Noel Sanga, learned counsel for the respondents. , tf.Z.MGEYEKWA JUDGE 8