Ruling Civil Reference No

IN THE UNITED REPUBLIC OF TANZANIA JUDICIARY IN THE HIGH COURT OF TANZANIA MOSHI SUB- REGISTRY AT MOSHI CIVIL REFERENCE NO. 7246 OF 2024 (C/F Taxation Cause No. 06 of 2022. Originating from Land Case No. 24 of 2017 in the High Court of Moshi at Moshi) SCHOLASTICA INVESTMENT COMPANY LIMITED..………..…APPLICANT VERSUS FREDRICK SEMALI KISAMO………………………….……….RESPONDENT RULING Date of Last Order: 24.07.2024 Date of Ruling : 23.08.2024 MONGELLA, J. The applicant herein sued the respondents in this Court vide Land Case No. 24 of 2017. The matter was decided in the respondent’s favour. The respondent thereafter filed Taxation Cause No. 06 of 2022 claiming costs amounting to TZS 52,640,626.00/= after VAT. The taxing master awarded a sum of TZS. 23,800,000/= and taxed off the rest. Aggrieved by the decision of the taxing master, the applicant preferred this application under Order 7 (1) and (2) of the Advocates Remuneration Order, GN. No. 263 of 2015 seeking from this court for the following reliefs: one, for this Court to vary the decision of the taxing master as he did not exercise his discretion Page 1 of 17 judiciously, misapprehended facts before him and erroneously overtaxed the applicant; two, for the Court to vary the decision of the taxing master as he did not stay the taxation cause pending determination of the filed appeal and thus erroneously arrived at the said decision; three, for the Court to vary the decision of the taxing master as he failed to properly tax transport costs, attendance costs, meal costs and accommodation costs; four, for this Court to reference Taxation Cause No. 06 of 2022 according to laws governing taxation of costs; five, costs of this Reference and six, any reliefs this Court deems fit. The application is supported by the sworn affidavit of one, Gwakisa Kakusulo Sambo and contested by the counter affidavit of one, Elias Fredrick Kisamo. The application was resolved by written submissions whereby the applicant was represented by Mr. Gwakisa Kakusulo Sambo, while the respondent was represented by Eng. Joseph Ngiloi, both learned advocates. Adopting the contents of his affidavit, Mr. Sambo faulted the taxing master for what he alleged as failure to exercise his discretion judicially as he awarded the respondent TZS.10,000,000/- as instruction fees. He contended that Land Case No. 4 of 2017 was finalized on a point of “locus standi” thus rendering the fee excessive. He faulted the decision of the taxing master in awarding the amount on the ground that the matter had lasted over three years in Court. He considered such reasoning baseless. The learned counsel further listed the principles to be considered in assessment of instruction fees to be: the amount involved in the suit; the amount Page 2 of 17 of research required in examining issues of law and facts; the existence of legal issues which are complex in nature and time spent on the brief. In support of his arguments, he referred the case of Haidar Bin Mohamed Elamandry and Others vs. Khadija Binti Ali [1956] EACA at page 313, which he said was reaffirmed in George Mbuguzi and Another vs. A S. Masikini [1980] TLR at page 55. In consideration of the authorities cited, he challenged the taxing master for not taking note of the laid down principles and instead only considering the time the matter lingered in Court which was a very minor factor that did not justify the grant of TZS 10,000,000/-. He contended that had the taxing master considered the principles laid out, he would have not arrived at the said decision. Endeavoring to show that Land Case No. 24 of 2017 was not complex in nature, he asserted that the matter was only determined on the question of locus standi and not on merit. He further alleged that the suit land was also an undeveloped piece of land, thus should not have attracted such huge amount of monies as instruction fee. According to Mr. Sambo the reasonable amount was TZS 3,000,000/-. Concerning transport costs, Mr. Sambo contended that in absence of a certificate of a Judge of this Court which allows costs of three advocates, the taxing master lacked the justification to allow transport costs for three advocates. He alleged that there was no reason for the taxing master to allow colossal instruction fees for advocate Ngiloi and proceed to allow transportation costs for three advocates. He further challenged the award of such costs on Page 3 of 17 the ground that the respondent’s counsel did not provide any justification for award of the said costs in his submissions and the taxing master failed to justify the award of the said costs. In the circumstances, he saw the taxing master clearly failed to exercise his discretion, something which did not only prejudice the applicant, but also made the respondent unfairly enriched by taxing 23,800,000/=, which did not match the work done. Mr. Sambo further faulted the award of meals and accommodation costs whereby he found the same being erroneous on the reason that there is no provision in the Advocates Remuneration Order providing for such costs. He further challenged the award for being excessively awarded without proof. Submitting further, Mr. Sambo questioned the reason behind all three advocates entering appearance before the Court. He also questioned why the said advocates stayed in hotels and not at their residences while they were based in Moshi. He added that no EFD or manual receipt was tendered in relation to the alleged accommodation and no receipts for the alleged meals taken. In his view, the absence of the said receipts served as proof that the costs were fabricated. The learned counsel as well challenged the costs for attending the taxation cause. He held the stance that the cost should be lowered to TZS. 300,000/- from TZS. 700,000/-. Along with that, he called for the costs of meals and accommodation during hearing of the taxation cause to be taxed off for want of receipts and proof of the presence of the respondent’s advocate in Moshi when the Bill of Page 4 of 17 Costs was called for orders. Further, he faulted the taxing master for failing to mention the date the applicant’s advocate appeared for the Bill of Costs cause even the flight ticket was not produced. In that respect, he prayed that the TZS. 120,000/- awarded as costs for attending the Bill of Costs to be taxed off. Mr. Sambo finalized his submissions by praying for the application to be allowed, the Ruling of the taxing master to be reversed and for this Court to tax the amount which will meet the ends of justice. He expressed his view that the bills are to be taxed in not more than TZS 3,000,000/= or as this Court would determine to meet the ends of justice. Arguing in line with the contents of the respondent’s counter affidavit, which he prayed to adopt, Mr. Ngiloi opposed the application. In his reply, he disputed Mr. Sambo’s assertion that the matter was not complex. He contended that Land Case No. 24 of 2017 was not a simple case as it proceeded to full trial whereby the applicant called four witnesses and the respondent three witnesses. He added that the matter also took three years in Court whereby it was the applicant that dragged the respondent to Court, thus cannot escape liability. Defending the Ruling by the taxing master he claimed that reasons for awarding the instruction fees were assigned and the decision was guided by the law. To buttress his point, he cited the case of Tanzania Rent a Car Limited vs. Peter Kimuhu, (Civil Reference No. 09 of 2020) [2021] TZCA 103 (06 April 2021) TANZLII. Further, he Page 5 of 17 alleged that the taxing master properly exercised his discretion according to the principles laid down in Premchand Raichand Ltd and Another vs. Quarry Services of East Africa Ltd and Others (No. 3) [1972] 1 EA 162. As such, he found there was no justification for this Court to interfere with the decision of the taxing master. Addressing the claim that transport costs were awarded to more than one advocate, Mr. Ngiloi denied such decision being entered. He said that transport costs were awarded to one advocate alone on the reason that in the event more than one advocate enters appearance, only one advocate would be considered on basis of seniority. He thus prayed for the issue to be disregarded. With respect to costs on meals and accommodation, the learned counsel contended that the taxing master only awarded such costs in regard to one senior advocate on the ground that more than one advocate entered appearance. He further contended that under Order 49 of the Advocates Remuneration Order, remuneration costs are not limited to transport costs. He saw no substance in this allegation and prayed for the same to be disregarded. As to costs of prosecuting the Bill of Costs, Mr. Ngiloi saw no substance in the applicant’s complaint. He averred that the taxing master exercised his discretion judiciously in awarding the said costs as he applied consistency principle throughout his Ruling. In his view, the production of receipts was not mandatory in prosecuting Bills of Costs. Page 6 of 17 Mr. Ngiloi further hinted that no submissions have been made regarding the allegation that the taxation ought to be stayed pending the determination of the appeal. In his stance, the claim was dropped. Further, he argued that this matter was determined on 12.09.2022 and the applicant never challenged. In the premises, he contended that the issue cannot be argued in this forum as it is time barred. He finalized his submission by praying for this Reference to be dismissed with costs for lack of substance. Rejoining, Mr. Sambo reiterated his position that Land Case No. 24 of 2017 was resolved on the issue of locus standi, thus the respondent’s advocate was not entitled to receive the colossal amount of TZS. 10,000,000/= as instruction fees. He contended that the witnesses gave brief testimonies before the Court, thus the instruction fees were not justified. Further, he said that the matter took 3 years because of Court processes and not the applicant’s negligence. So, he had the view that the applicant cannot be punished by being ordered to pay the colossal amount of money as instruction fees. He alleged that the award was contrary to the principles established in Premchand Raichand Ltd (supra). He considered the award as geared to confine access to court to the wealthy only as the total amount awarded is unfair and unreasonable. In addition, Mr. Sambo insisted that there was no hefty research conducted in relation to the issue as the same is not a new matter in our jurisdiction. He alleged that the award of instruction fees does not rely on the experience or seniority of the advocate but rather Page 7 of 17 the complexity of the work. In that respect, he saw the taxing master was wrong in noting that the respondent was represented by senior and experienced advocates. Mr. Sambo also reiterated his argument that the taxing master taxed items for the three advocates which was contrary to the requirement of the law as there was no any certificate by the Judge for the three advocates to be remunerated their costs for attendance. Rejoining on the issue of transport costs, Mr. Sambo challenged the respondent’ counsel for not going deeply through the Ruling of the taxing master. He said that had he done so, he would have noted that many items on transport costs were charged for the three advocates. In his view, this was wrong considering that only a single advocate was instructed. He complained that despite the taxing master stating that he will consider transport costs for the senior advocate alone, he did not do so. He reiterated that the Advocates Remuneration Order does not permit the alleged costs for meals and accommodation. In his view, such costs are covered under instruction fees. He believed taxing the same would occasion double taxation. In that respect, he insisted that the principles of instruction fees are to the effect that the same are not for show off, the same comprise costs for meals and accommodation. Page 8 of 17 Mr. Sambo further challenged the cost of TZS 500,000/- awarded for attending the taxation cause seeing the same being high. He alleged that TZS. 500,000/= would have sufficed as costs for the cause because the matter did not take long at all. Disputing the claim further, he reiterated his claim that neither the respondent nor his advocate appeared in Court and the matter was resolved by written submissions. Mr. Sambo finalized his submissions by stating that the entire Bill of Costs was wrongly taxed and called the attention of this Court to correct the same and come up with a figure that meets the ends of justice. In the alternative, he sought for the file to be remitted to another taxing Master who would tax the same according to the law. He reiterated his prayer for the reference to be allowed with costs. I have observed the rival submissions of both parties’ counsels. The applicant herein is challenging the costs awarded to the respondent in Taxation Cause No. 06 of 2022. His counsel, Mr. Sambo, specifically expressed his discontent on the instruction fees awarded to Mr. Ngiloi, transport costs awarded to other advocates; meals and accommodation costs awarded in the taxation cause and; costs for attending the taxation cause for diverse reasons. In resolving this dispute, I shall address each of the concerns raised. With regard to instruction fees, Mr. Sambo termed the awarded TZS. 10,000,000/- as excessive alleging that the matter was not complex enough to attract such sum. He also claimed that taxing such sum Page 9 of 17 was contrary to the law and procedures governing taxation matters. On the other hand, Mr. Ngiloi believed the amount was justly awarded considering that the matter proceeded to hearing with witnesses from both parties being called. He also considered the time the matter dragged in Court, which was three years. It is imperative to note that the taxing of instruction fees is left at the discretion of the taxing master. Courts can only interfere with such discretion when exercised injudiciously contrary to principles governing the same. This position has been well articulated by the Court of Appeal in its plethora decisions. For instance, in the case of Tanzania Rent a Car Limited vs. Peter Kimuhu (supra), it was ruled: “...it is a general rule that the award of instruction fees is peculiarly within the discretion of a taxing officer and the Court will always be reluctant to interfere with his decision, unless it is proved that the taxing officer exercised his discretion injudiciously or has acted upon a wrong principle or applied wrong consideration.” See also; Mary Siril Chuwa and 7 Others vs. Uru Shimbwe Rural Primary Cooperative Society (Civil Appeal No 76 of 2021) 2024 TZCA 428 (11 June 2024) TANZLII; Kitinda Kimaro vs. Anthony Ngoo Another (Civil Reference No 6 of 2016) 2018 TZCA 493 (13 July 2018) TANZLII; and Premchand Raichand (supra) In Premchand Raichand (supra), the Court gave a list of guiding principles to be observed in awarding instruction fees. The same are: that the costs be not allowed to rise to such a level as to Page 10 of 17 confine access to the courts to the wealthy; that the successful litigant ought to be fairly reimbursed for the costs he had to incur; that the general level of remuneration of advocates must be such as to attract recruits to the profession and; that there should be consistency in the award made. In Kitinda Kimaro vs. Anthony Ngoo Another (supra), the Court listed factors to be taken into consideration in assessing instruction fees. It 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 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” Having observed the Ruling of the taxing master as well as the Bill of Costs filed, I find that the instruction fees claimed was valued at TZS 21,000,000/-. The taxing master found the same excessive. He instead awarded TZS 10,000,000/- taking into account that: the matter had stayed in Court for three years, the advocates were experienced, the time taken for research and number of witnesses. For ease of reference, I will reproduce the relevant part of his Ruling as hereunder: Page 11 of 17 “I partly agree with respondent's counsels that the claim of Tsh 21,000,000/= are excessive but on other side the record is clearly that the applicant fended the proceeding since 2017-2020, exactly three years. Taking into account the cost, the competent and experienced advocates for applicant time to conduct hefty research and the number of the witnesses covered I think Tsh10,000,000/= as instruction fees would have met the justice of the cases, the rest is taxed off.” (sic) I agree with Mr. Sambo that the taxing master erroneously took into consideration the fact that the advocates were competent and experienced in awarding instruction fees. All the taxing master ought to do was to consider the complexity of the matter, the work done and time taken, factors which I find he well took into consideration. It is not contested that the matter dragged in Court for 3 years. Mr. Sambo contended that the matter was finalized on the question of locus standi. His assertion is however not backed by the record. The proceedings on record show that the matter was contentious and proceeded to trial and eventually determined on merit. I have gone through the record and found no Judgement attached to the application at hand or in the record for this Court to see what exactly was decided. Nevertheless, the fact that the record contains proceedings which reveal witnesses adducing evidence and finally the Court ordering for filing submissions, evidences that the advocates were required to research on the matter, guide witnesses, hear arguments and cross examine other witnesses. In my considered view, such work cannot be termed as light. In further Page 12 of 17 consideration that the taxing master was in better position to assess and/or weigh the work done by the applicant’s counsels, I find no justification to interfere with his assessment. In that regard, I find the sum of TZS. 10,000,000/= justified as instruction fees. With respect to transport costs, Mr. Sambo contended that the taxing master awarded transport costs for three advocates while there was no proof that the Judge certified such costs. Mr. Ngiloi countered that no such costs were awarded claiming that transport costs were only awarded to him. The arguments by the learned counsels are founded under Order 49 of The Advocates Remuneration Orders, 2015 which states: “49. The costs of more than one advocate may be allowed in cases or matters in which, the Judge at the trial, in the case of a plaintiff, having regard to the amount recovered or paid in settlement or the relief awarded or the nature, importance or difficulty of the case and, in case of the defendant having regard to the amount sued for or the relief claimed, or the nature, importance or difficulty of the case has certified under his hand that more than one advocate was reasonable and proper, and such certificate may be granted in respect of two members or employees of the same firm.” As stated in the relevant provision, where a party is represented by more than one advocate then costs must be certified by the Judge regarding such factors as provided in the provision. In the matter at hand, as claimed by Mr. Sambo, such certificate does not exist. Mr. Ngiloi, has as well not contested this fact. The question therefore is Page 13 of 17 whether indeed the taxing master awarded transport costs to three advocates instead of one, contrary to the provision. Upon observing the taxing master’s Ruling, I find that though no reference was made to Order 49 of the Advocates Remuneration Order, he still implemented the requirements under the provision. The Ruling manifests that he awarded costs for the senior advocate where more than one advocate entered appearance and award costs for a single advocate where only one advocate entered appearance. This, in my considered view, was a justified approach to avoid double taxation. The same did not in any way contravene the requirement under Order 49. However, this being a reference, I have noted some errors in granting the said costs. These errors are manifested in items 15,16, 17,18, 29, 30 and 31. In items 15 and 16 falling on 16.10.2019 and 17.10.2019 respectively, Mr. Ngiloi’s costs included transport by flight, accommodation for 2 days and attendance fee of TZS 50,000/- for both items. The taxing master awarded transport (air ticket) and accommodation for both dates. I find this an error on his part as it is double taxation. Considering consecutive dates of attendance, the second date ought not to be charged for transportation and accommodation since, the two days were already charged under item 15. In that regard, I hereby tax off transport and accommodation costs for items 16 and thus only grant TZS. 50,000/- as attendance costs. Page 14 of 17 Since the same error was occasioned in items 17 and 18, I again tax off the transport and accommodation costs for item 18 and grant TZS 50,000/- as attendance costs. For items 28, 29,30 and 31, I tax off transport costs for Items 30 and 31 and hereby award TZS. 360,000/- being accommodation costs for one more night making a total of 5 days. This is because advocate Elias had travelled by bus from Dar es Salaam to Moshi which would mean spending a whole day in transit. Other than the above made rectifications, in taxed items under section 2 of the Bill of Costs, I sustain the rest of the awarded amount. Undoubtedly, Mr. Sambo’s argument on transportation being taxed contrary to Order 49 of the Advocates Remuneration Order has no merit. As to the averment that accommodation and meals ought not to be taxed as being not covered under the Advocates Remuneration Order, I find this argument rather absurd. The Orders serve as a guide to assist the decree holder to be reimbursed for costs he or she incurred in prosecuting or defending the matter. This serves to cover all costs the party has incurred owing to the matter. In such sense, if a party was required to procure services of an advocate, then s/he would be entitled to instruction fees. If such party or his advocate is required to enter appearance and travels a distance to access the court, such costs must be reimbursed. If for being away from the court, s/he is required to incur other expenses be it meals or accommodation then such costs must also be reimbursed. Page 15 of 17 Instruction fees only cover representation of a party and not other ancillary costs. Courts have thus awarded accommodation and meal costs as part of costs incurred in prosecuting or defending a matter, of course subject to reasonability. See; Anthony Ngoo Another vs. Kitinda Kimaro (Civil Appeal No 25 of 2014) 2016 TZCA 849 (5 August 2016) TANZLII and ZB Mkoba vs. Kamyn Industries Ltd (Civil Reference 6 of 1994) 1994 TZCA 50 (28 December 1994) TANZLII. As to the allegations that there were no receipts tendered in relation to accommodation, I am of the view that, as well resolved by this Court and the Court of Appeal in several instances, not all charges can be proved by receipts. This is why reasonability of the costs takes precedence in taxation causes. I am thus of the finding that the taxing master taxed the items at a reasonable amount. As to the allegation that Mr. Ngiloi and other advocates had no reason to stay in hotels as they have homes in Moshi; I find no proof being tendered in proof of such assertion or that they stayed in the alleged residences. I also do not find the fact that they resided in their respective residences would in any way mean they are not entitled to be reimbursed for the costs they incurred given that they proved to have travelled from their respective places of business or domicile. This argument is thus unmeritable. As to costs incurred in attending the taxation, I find no reason to fault the same. I state so because, the taxing master awarded TZS. Page 16 of 17 700,000/- as a lumpsum covering meals and accommodation, stationery, and costs spent for engaging an advocate who attended the court for all the scheduled days and eventually drafted and filled written submissions. According to the Ruling as well as the proceedings, the respondent’s advocate attended the court sessions in a total of 4 days. The taxing master taxed TZS. 120,000/- for each day thereby deducting TZS. 30,000/- from TZS. 150,000 claimed by the respondent. Considering the events as they transpired, I am of the view that the total sum of TZS. 700,000/- awarded was reasonable and well justified, thus find no merit in Mr. Sambo’s argument. In the foregoing, save for the minor alterations made herein, I sustain the Certified Bill of Costs. Each party shall bear his/her respective costs for this Reference. Dated and delivered at Moshi on this 23rd day of August, 2024. X L. M. MONGELLA JUDGE Signed by: L. M. MONGELLA Page 17 of 17