SALUM VIALE JDG

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT DODOMA CIVIL REFERENCE NO. 000010737 OF 2024 SALUM VIALE KIBWANA .............................. COMPLAINANT / APPELLANT / APPLICANT / PLAINTIFF VERSUS SHABAN BESA .............................. RESPONDENT / DEFENDANT RULING HASSAN, J, IN THE HIGH COURT OF TANZANIA DODOMA SUB - REGISTRY AT DODOMA CIVIL REFERENCE NO. 10737 OF 2024 (Originating from Miscellaneous Civil Application No. 2 of 2023 in the District Court of Iramba at Kiomboi) SALUM VIALE KIBWANA……...…………………………….APPLICANT VERSUS SHABANI BESA.………………………………….…… 1ST RESPONDENT PHILIPINA MCHOMVU………………………………2ND RESPONDENT RULING 11/2/2025 Page. 1 HASSAN, J.: The respondents herein successfully sued the applicant in the district court of Iramba at Kiomboi in Civil Case No. 2 of 2020 and they were also awarded costs. They then filed an application for taxation in Miscellaneous Civil Application No. 2 of 2023 in the same district court which was partly granted. Aggrieved by the said decision, the applicant has filed this application for reference made under Order 7(1)(2) of the Advocates Remuneration Order, G. N No. 263 of 2015 praying the court to call and examine the correctness of the decision of the taxing master. When the application was called on for hearing, the applicant was represented by Mr. David Deogratius, advocate while the respondents were both represented by Mr. Peter Ndimbo, advocate. Hearing preceded by way of written submissions. The parties’ learned counsels complied to the order of preference in filing their written submissions. In his submissions, the applicant’s learned counsel kickstarted by adopting his chamber application and argued that, basically they are aggrieved with two issues, firstly, that the District Court heard and determined the matter while it was out of time and secondly, that the taxing master awarded amount of money which are unreasonably excessive. Starting with the first issue, he succumbed that the matter was entertained and determined while it was out of time. That, the judgment of Iramba District Court which led into bill of cost was delivered on 26th May, 2022. However, on 24th October, 2023 the respondents filed Misc. Application No. 02/2023 for bill of costs almost one year and five months passed. In their submission at the District Court of Iramba they argued that they failed to file bill of costs within the time as they were dealing with appeal matter in this Court. The Civil Appeal No. 23/2023 came for the first time before this Court on 11th day of August, 2022 which means 78 days after the date of judgment to be delivered by Iramba District Court. He submitted that Order 4 of the Advocates Remuneration Order, 2015 GN NO. 263/2015 provides for time limitation in filing Bill of Costs to be sixty days from the date of an order awarding costs. Thus, the respondents failed to adhere to the requirement of the law consequently by filing their application for bill of costs one year and five months after delivery of judgment and decree. He cited Mohamed Kanji Vs Mac Group Ltd, Reference No. 22/2022 (unreported) to stress his point. He suggested that the Bill of Costs was totally filed out of time without leave of the court. Coming to the second issue that the taxing master accepted the costs which were unreasonably excessive. The learned counsel argued that the respondents failed to submit receipts, tickets or vouchers to prove the costs incurred particularly bus tickets for public transport or fuel receipts for private transport. He suggested that, considering the fact that the applicant raised his concern that the costs were excessive, the taxing master ought to have ordered the respondents to bring receipts or vouchers to prove their costs in order to reach into a just decision. He referred to Order 58 (1) of the Advocates Remuneration Order, 2015, GN 263/2015 and argued that, the taxing master ignored the said provision of the law and thus reached into unjust decision against the applicant. He stressed his point by citing Hasham Vs Alibhai Kadebhai, [1988] TLR 676. The learned counsel challenged the TZS 800,000/= award as transport charge per twenty trips which is equivalent to TZS 40,000/= per trip by Page. 2 arguing that, it is excessive because the normal and well known bus fare is TZS 10,000/= per trip. The applicant finally prayed this application for reference be allowed as prayed in the chamber summons with costs. Responding to the applicant’s submissions, the respondents’ learned counsel argued that, this is a Civil Reference arising from Order 7 of the Advocates Remuneration Order, 2015 which clearly provides for the reference to be confined in the matter aggrieved by the decision of Taxing Officer, not new claims which was not decided by the Taxing Officer. He contended that, during the submissions in support of the applicant’s preliminary objection before the Taxing Officer in the trial court, the applicant did object that the application for bill of cost was filed after expiration of seventeen months the fact which was ruled that the delay was to be excluded in the computation of the period of limitation by Section 21(1) of the Law of Limitation Act [Cap 89 R.E 2019] by the Taxing officer. He added that arguing about it when the Civil Appeal No. 23 of 2023 came for the first time before this Court was an afterthought as the same was not part of the aggrieved decision hence the respondents submitted that there is no leave to be argued in this reference as it was not part of the aggrieved decision. The learned counsel went on submitting that, it was ruled by the Taxing Officer that the applicant’s objection had no merit as the respondents herein could not continue with the matters of bill of cost because the applicant had already appealed before the High Court hence exclusion under section 21(1) of the Law of Limitation Act. He distinguished the rule in Mohamed Kanji V. Mac Group Ltd by submitting that the respondents decided to not file for bill of costs while there was a pending appeal due to the fact that Section 21(1) of the Law of Limitation would favour them in exclusion of time as it was also emphasized in the case of Geita Gold Mining Limited versus Anthony Karangwa, Civil Appeal No. 42 of 2020 He contended that it is undisputed that the applicant herein lodged his Appeal No. 23 of 2022 at the High Court on 24th June 2022 and served the summons and Memorandum of Appeal to the respondents on 08th July 2022 which is within the time of filing Bill of Cost that is 60 days. The learned counsel further submitted that they decided to wait for decision of the appeal as they feared the said appeal could overrule the Judgment that awarded them the costs as they were also aware of Section 21 of the Law of Limitation Act. The respondents’ counsel then attempted the second limb of this application which is on the fact that the taxing master accepted the costs which were unreasonably excessive. He buttressed that, the same was charged at Tshs 1,000,000/= for 20 trips of Court’s appearance that is Tshs 50,000/= for each trip but the taxing officer considered the amount to be excessive and reduced to Tshs 800,000/=. He added that, the applicant did not dispute the 20 appearances made by the respondents as he claimed the bus fare per trip is 10,000/= therefore, go and return is 20,000/= not to mention breakfast and lunch as the trip to attendance to the Iramba District Court at Kiomboi begins at 6:00 am in the morning so as to be in Court around 9:00 am to wait for the time the case file to be called. That, from there on, the respondents had to spend the entire day in Court and travelling that is why the taxed amount of 800,000/= is not only reasonable and just but also minimum. The learned counsel went on submitting that, Order 58(1) of the Advocates Remuneration Order gives a mandatory requirement of receipt or voucher on the condition that, only if required by the taxing officer. Thus, Page. 3 when reviewing the ratio of the taxing officer at page 6 of the Ruling it is vividly clear that the taxing officer was well vested with the situation of the Court plus length and duration which allowed her to reach the taxing of Tshs 800,000/= instead of Tshs 1,000,000/= the fact which did not require the taxing officer to be furnished with receipts and vouchers to tax the same. The learned counsel finalized his submissions by praying that this application to be dismissed with costs. Now, going through the above submissions by the learned counsels for and against the application, the issue for determination is whether or not the application has merit worthy granting the prayers sought by the applicant in this application. Looking at the chamber summons, the applicant prays for two orders for reference, the first one being time limit check for the Application for Bill of Costs determined by the trial court. And second, correctness of the decision particularly on the amount of money awarded. I will start my determination with the first prayer regarding time limit. Indeed Order 4 of the Advocates Remuneration Order, G. N No. 263 of 2015 provides for time limit for filing bill of costs, that is within 60 days from the date of an order awarding costs. In the instant case, the decision awarding costs that is Civil Case No. 2 of 2020 was decided on 26/5/2022 as submitted by the parties. Thus, the decree holder, the respondents was to file their bill of costs application, if any, within 60 days from the said date. However, the same was filed in the trial court on 24/10/2023 thus out of 60 days time frame. On their part, the respondents defended themselves that, this issue was raised by the applicant as a preliminary objection in the application for bill of costs in the trial court, the respondents’ defence was that, they did not file for bill of costs in time since there was a pending Civil Appeal No. 23 of 2022 which was indeed filed in this court within the 60 days time frame, thus the trial court overruled the preliminary objection by applying the principle of computation of time as provided by Section 21 of the Law of Limitation, Act. It is undisputed that Section 21(2) of the Law of Limitation Act, Cap 89 R. E 2019 provides that the time in which a party was prosecuting another civil proceeding against the same party with due diligence should be excluded, thus:- “21. (2) In computing the period of limitation prescribed for any application, the time during which the applicant has been prosecuting, with due diligence, another civil proceeding, whether in a court of first instance or in a court of appeal, against the same party, for the same relief, shall be excluded where such proceeding is prosecuted in good faith, in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.” The CAT has interpreted well the above provision of the law in Geita Gold Mining Limited vs Anthony Karangwa (supra). For that matter, the time in which the applicant used to prosecute the civil appeal against the respondents in this court has to excluded as it was well decided by the trial court. Now coming to see whether the bill of cost was filed out of time, the decision of the High Court in Dc Civil Appeal No. 23 of 2022 (Masabo, J) was delivered on 25/8/2023. Thus, time for filing bill of costs started running from the said date. The respondents filed their application for bill of costs on 24/10/2023 hence the application for bill of costs was filed by the Page. 4 respondents within time limit, that is 60 days. Thus, the first prayer is devoid of merit. Coming to the second prayer, the applicant in this application is only disputing the Tshs 800,000/= award for transportation for 20 trips to attend court sessions. In his written submissions he alleges that, the Tshs 40,000 for each trip is too much since the known fare is Tshs 10,000. He also alleged that, the taxing officer ignored Order 58 (1) of the Advocates Renumeration Order, 2015 which requires production of receipts or vouchers for disbursements charges serve for witness allowance and expenses. In his reply, the respondents’ learned counsel submitted that, the requirement is optional and in discretion of the taxing officer. Order 58 (1) of the Advocate Remuneration Order, 2015, GN 263/2015 provides; “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” [Emphasis Added]. From the wording of the provision quoted above, tendering of receipts required for disbursements of a Bill of Costs is not mandatory unless they are required by the Taxing Officer to be presented in court. In his submissions in the trial court, the respondents’ counsel alleged to have been travelling from Singida district to Kiomboi for court’s appearance and alleged to have been paid Tshs 50,000/= by the respondents as transportation fare thus times 20 times, thus claimed Tshs 1,000,000/=. On his part, the applicant contested by arguing that the learned counsel did not state where he was travelling from and that there was no proof. In my determination, the record is very clear at page 4 of the trial court’s proceedings that the respondents submitted to have been travelling from Singida District to Kiomboi District court. In her decision, the taxing officer decided the same by reasoning on the distance and the 20 times court appearances she thus decided to reduce the amount from Tshs 1,000,000/= to 800,000/= that is 40,000/= per court’s appearance (go and return). I fully subscribe to the taxing officer’s decision since, firstly, the advocate was travelling out of his district and secondly, since the applicant failed to prove to the court what was the exact amount for transportation from Singida to Kiomboi as he was disputing the claimed amount. It is an elementary principle of evidence that, whoever alleges must prove as provided by section 110 and 112 of The Evidence Act, [Cap 6 R.E 2022]. Instead, the applicant’s counsel has raised the purported amount to be Tshs 10,000 in this application for reference hence an afterthought. He ought to have raised the same in the trial court in the trial court. That being said and done, I do not see any reasonable grounds for altering the decision of the District Court of Iramba, thus this application is dismissed with costs for being devoid of merit. Ordered accordingly. DATED at DODOMA this 11th day of February, 2025. Page. 5 S. H. HASSAN JUDGE 11/02/2025 Judgment delivered this 11th day of February, 2025 in the presence of learned counsels for both parties. S. H. HASSAN JUDGE 11/02/2025 Dated at DODOMA this 11th of February 2025 . S. H HASSAN JUDGE OF THE HIGH COURT Page. 6