CIVIL REFERENCE NO 8736 OF 2024

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA ARUSHA SUB-REGISTRY AT ARUSHA CIVIL REFERENCE NO. 8736 OF 2024 (C/f Taxation Cause No. 44 of2023, arising from Land Case No. 1 of2022, High Court of Tanzania at Arusha) RHODICE SIMON MOSHI............................................................... APPLICANT VERSUS WINFRIDA PATRICK KIBUTA............................................ 1st RESPONDENT JANETH PATRICK KIBUTA................................................. 2nd RESPONDENT RULING 4th September & 25th October 2024 Masara, J This Application was brought under Order 7(1) and (2) of the Advocates Remuneration Order, 2015, through a Chamber Summons supported by an Affidavit and Supplementary Affidavit deponed by the Applicant himself. The Respondents opposed the Application by lodging jointly deponed Counter Affidavits to the Affidavit in support of the Application as well as to the Supplementary Affidavit deponed by the Applicant. The Applicant herein preferred the Application as he was aggrieved by the decision of the Taxing Officer in Taxation Cause No. 44 of 2023 delivered on 03/04/2024. The Applicant prays that this Court assesses the validity of the ruling made thereto and make an appropriate order. 1 | Page As a matter of legal representation, the Applicant enjoyed the services of Mr Benjamin Tenga, learned advocate, while the Respondents were represented by Mr Hamidu Juma Mushi, also a learned advocate. Submitting in support of the Application, Mr Tenga, while adopting the Affidavit and the Supplementary Affidavit of the Applicant to form part of his submissions, he went further to blame the Taxing Officer for taxing TZS 2.6 million for appearance in the 1st PTC, Mediation and Final PTC done in the main case. According to him, a taxing master has to tax according to the Advocates Remuneration Order which is the guiding law. Mr Tenga was of the view that, according to Order 46 of G.N No. 263, taxation of costs has to be made in accordance with the prescribed scales as the Order does not provide scales for appearances in hearing and mention. That, item 23 of the 8th Schedule provides costs for hearing for the first 15 minutes to be TZS 50,000/=. That, a factor to be considered for hearing or mention is the time spent rather than the purpose. To support his position, he referred this Court to the case of Rose Mkeku (the Administratrix of the estate of the late Simon Mkeku) vs Parvez Shabbirdim, Mi sc. Civil Application No. 89 of 2021 [20231 TZHC 3037 Tanzlii. 2 | Page Referring to the case under consideration, Mr Tenga claimed that, the Advocate for the Respondent was duty bound to prove the length of time she spent when she appeared for mentions and hearings; thus, the taxing officer applied a wrong principle by awarding costs at TZS 200,000 for each item from items 1, 2, 3, 7, 8, 9, 10, 11, 12, 13 and 14. Further, that when she awarded costs for items 5, 6, 15 and 16 at TZS 100,000, the taxing master ought to have considered the length of time spent during appearances and not otherwise. According to Mr Tenga, because the Advocate for the Respondents failed to prove the time spent, the Taxing Officer ought to have taxed the items at TZS 50,000/= as per the law, making a total of TZS 800,000/= in items 1 to 16 of the Bill of Costs presented. Basing on the submission made, the Applicant prays that this Court varies the amount taxed by the Taxing Master as above stated. On a separate note, Mr Tenga informed the Court that he owes a duty as an officer of the Court to inform the Court on any development that may assist the Court to reach a just decision on the matter before it. He informed the Court that the Taxation matter subject of this Application arose from a Ruling of this Court, Tiganga, J, in Land Case No. 1 of 2022. That the order of costs against the Applicant herein was made after the Defendant/Applicant prayed for amendments of his written statement of J I r a g e defence (WSD). Costs were with respect to appearances in the 1st PTC, Mediation and Final PTC. Mr Tenga further averred that, at the time of the hearing of the taxation cause, the main case was continuing before Tiganga, J. That, on 10th May 2024, the High Court delivered a ruling in the main case. In the said ruling, the advocate for the Respondents was disqualified from representing the Respondents due to conflict of interest. That, the advocate who prepared the taxation matter is the same person who was found to have conflict of interest; namely, Yustawinnie Vitalis Mtui. The order which granted costs was with respect to the same advocate. The ruling disqualifying the advocate nullified all processes and the case had to start afresh. Based on those grounds, he prays for order quashing the order of the taxing master with costs. Contesting the Application, Mr Mushi likewise craved to adopt the Counter Affidavits both filed on 17th June 2024 to form part of the submissions. Referring to Order 7(1) and (2) of the Advocates Remuneration Order, he contended that an aggrieved party may make a reference to a Judge, but for the Court to entertain the reference, the said reference must be based on a point of law or where the amount taxed is manifestly excessive or inadequate. He cemented his position by a decision of this Court in Southern Highland Earthworks Company Ltd vs UAP Insurance •* I r o s e Tanzania Ltd, Reference No, 1 of 2021 (HC Sonqea) where the Court reiterated the above legal position. Mr Mushi submitted further that the discretion of a taxing master cannot be interfered by the Court unless for exceptional grounds as stated in the above cited case. In the alternative, Mr Mushi submitted that the submissions made on behalf the Applicant amounts to a submission from the bar, as it is not based on the sworn affidavits by the Applicant. That, in the Supplementary Affidavit, the Applicant is giving evidence on a matter not originating from the taxation cause, as all paragraphs in the Supplementary Affidavit are based on Land Case No. 1 of 2022. Further, that looking at Paragraph 3 of page 5 of the taxation ruling, the taxing officer confirmed that the Applicant had not disputed the amount claimed; hence she proceeded to grant the amount claimed. Based on the above, Mr Mushi was of the view that the Applicant is estopped from claiming that the amount awarded is excessive, as the scale of taxation was not raised during the taxation hearing hence a new issue, to which the Court has no jurisdiction to entertain. Responding to the Applicant's claims in paragraph 9 of the Affidavit in support of the Application that there was no evidence or receipt that the taxing master considered in granting the amount, Mr Mushi contended 5 | Page that, it is settled law that evidence or receipt is not a requirement in taxation unless the Taxing Officer requires its production. To buttress his submission in this respect, reference was made to the cases of Edmund Ngeni vs Mjanja Naqaqwa, Taxation Civil Reference No. 1 of 2021 (HC Mwanza) and Ndovu Adventure Ltd vs Elibariki Lorry, Taxation Reference No. 6 of 2021, HC Arusha. On the basis of the case cited above, the Respondents are of the view that the taxing officer was right to award all amounts in items 1 to 16 as they arose from the decision of the trial Judge and the Applicant failed to contest the amount which was later granted by the taxing master. On the Supplementary Affidavit, Mr Mushi argued that the same does not support the Applicant's Reference since all claims thereof are based on the ruling of Tiganga, J, which struck out all documents filed by the Advocate for the Respondent. That, it is not true that the ruling nullified all proceedings as at pages 10 and 11 of the said ruling the Court sustained the PO and held that Land Case No. 1 of 2022 and the WSD filed to oppose the Counter Claim were incompetent. That, they were struck out for being prepared by an advocate who had a conflict of interest. Thus, the decision to grant the said advocate her costs was not varied and no appeal was filed against it. That, the decision remains intact and the taxing officer was right to deal with it as she did. Counsel for the o | r ci g e Respondent therefore prayed that the decision of the taxing master be upheld and the Reference be dismissed for want of merits with costs. In his rejoinder submission, Mr Tenga reiterated his submissions in chief and added that, even if the amount claimed was not disputed, that does not grant the taxing master the latitude to tax as she pleases. That, she should tax the same according to law. Further, he avers that the discretion of the taxing officer can be varied if it is made without following the known principles such as the general rule of costs follow the event, but, according to Muller, a misconduct can deprive one of the costs which would otherwise be due to them. On whether the Ruling in Land Case No. 1 of 2022 did not nullify everything, Mr Mushi submitted that, as the case was nullified, every order made thereof could not survive. I have carefully considered the Affidavits both in support and against the Reference and the rival submissions from both parties. The issue for determination is whether or not the impugned decision of the taxing master ought to be varied by this Court for being incorrect. Before embarking on the issue, I will first address the issue raised by the Applicant in the Supplementary Affidavit as well as in the submissions in 7 | Pa ge support of the Application regarding the Respondents' advocate at the trial Court. Both in the Supplementary Affidavit and in his oral submissions in Court, the Applicant's Counsel contended that, the trial Judge in his Ruling in Land Case No, 1 of 2022 declared Land Case No. 1 of 2022 to be incompetent for being initiated by an advocate who had conflict of interest on the matter. I had the opportunity to study and consider the said decision which was attached to the Applicant's Supplementary Affidavit. The ruling in Land Case No. 1 of 2022 nullified the whole suit and struck out the WSD filed opposing the counterclaim as they were prepared by an advocate who had a conflict of interest. Incidentally, however, the decision did not make reference to the initial order by the same Court regarding costs awarded to the Respondents herein. This takes me to deliberate on what an execution is and the duty of an executing court. It is a legal principle that an executing court cannot go beyond the decree as the duty of an executing court is to give effect of a decree. That is, the role of an executing court is to put into effect the decision made in the case and consequently deal with the orders and decrees as decided by the court. 8 | Page The executing court has no mandate to vary or go behind the decree it is mandated to execute. Any concerns against the orders issued ought to be referred to the trial court or appellate court which made the disputed orders. This position was made by this Court in the case of Fortunata Edqa Kaungua vs George Hassan Kambulu (Misc, Civil Application No, 71 of 2019) [2020] TZHC 2069 Tanzlii. With that in mind, the issue raised by Counsel for the Applicant concerning the validity of the order of costs after the then advocate for the Respondents, Yustawinnie Vitalis Mtui, was declared to have had conflict of interest in the case before the Court, cannot be sustained at this stage. That contestation was not within the mandate of the executing court and this Court sitting in Reference of the decision of the executing court cannot portend to exercise powers beyond which the executing court had while dealing with the impugned decision herein. It would have been different had the trial judge nullified all orders incidental to the proceedings in the final decision. Further, there is a strict timeframe within which to execute an order of costs, would the same issue be raised were the costs to be taxed before the final ruling in Land Case No. 1 of 2022? I think not. In other instances, the trial Judge could have made an order that costs be paid before the requested amendments were to be admitted. In both such instances, the issue now being raised by Counsel for the 9 | Page Applicant would be overtaken by events. I thus do not agree with the invitation made to disregard the Taxing Master's decision on the basis of the ultimate decision made in Land Case No. 1 of 2022. I now revert to the merits of the Applicant's Application. The Applicant avers that the amount of TZS 2.6 million awarded by the taxing officer in Taxation Cause No. 44 of 2023 was excessive. That amount was awarded with respect to Respondents' appearances in the 1st PTC, Mediation and Final PTC in Land Case No. 1 of 2022. According to the Applicant, the amount taxed contravene the Advocate Remuneration Order, G.N No. 263 of 2015, specifically, item 23 of the 8th Schedule which provides that the attendance fees for a period not exceeding 15 minutes is TZS 50,000/=. That as there was no proof that the alleged attendances exceeded 15 minutes, the taxing officer should have awarded the statutory amount. On the other side of the coin, the Respondents are of the view that since the amount was uncontested, then the Applicant is estopped from claiming that the amount is excessive. I have revisited the legal provision cited by Counsel for the Applicant and I agree with the Applicant's Counsel that the attendance fees, in the absence of evidence to the contrary is to be taxed at TZS 50,000/= per attendance. On the same breath, I do not agree with the submissions 10 I P a ge made by Counsel for the Respondents that since the amounts were uncontested, the same ought to be granted as presented. It is on record that the executing officer, at page 5 of the impugned decision, ruled that, since the applicant did not dispute the amount claimed in items 1 up to 16 of the Bill of Costs presented, the same was granted as prayed. That was conspicuously erroneous, to say the least. The law governing taxation of Bills of Costs is the Advocates Remuneration Order, G.N No. 263 of 2015. The said law provides for various scales to be used in taxation of costs depending on the type of dispute. For attendance in Court, item 23(a) of the 8th Schedule to G.N No. 263 of 2015 provides that, "Attendance in ordinary cases, per 15 minutes or part thereof - shillings 50,000/=". Although this amount is considered to be gauged in the 15 minutes attendance, no Advocate's attendance fee can exceed the said amount unless there exist proof that the attendance for the particular dates exceeded 15 minutes. The records show that the Respondents prayed and were granted an amount varying from TZS 100,000/= to TZS 200,000/= for each attendance. Incidentally, there existed no justification for the amounts claimed. The taxing officer never addressed her mind on the glaring excess of the amounts as compared to the existing scale provided by the 11 | P a ge law. It is on that basis that I have to agree with the Applicant that tie amount taxed by the taxing officer was excessive. That is an error which this Court ought to correct as was rightly submitted by the Applicant's Counsel. Thus, with respect to attendance fees under items 1 to 16 of the Bill of Costs presented before the taxing officer and taxed at TZS 2,600,000/=, that amount is varied and reduced to TZS 800,000/=, that is TZS 50,000/= for each appearance. The other items remain as were taxed by the taxing master; namely TZS 300,000/=. In the final analysis, the Reference is partly allowed as above stated. The Respondents costs are hereby taxed and are awarded TZS 1,100,000/= as costs arising from the Ruling of this Court in Land Case No. 1 of 2022. In the interest of justice, I direct that each party bears its own costs in this Application. DATED and DELIVERED at ARUSHA this 25th day of October 2024 Y.B. Masara JUDGE 12 | P a g e