SEC INVEST HOLDINGS LTD VS MAHUZA NYAKIRANGANI TAXATION REFERNCE NO

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION) AT PAR ES SALAAM TAXATION REFERENCE NO. 16 OF 2023 (Originating from Taxation Cause No. 61 of 2023) BETWEEN SEC INVEST HOLDINGS LIMITED.............................. APPLICANT VERSUS MAHUZA NYAKIRANGANI..................................... RESPONDENT RULING Date of Last Order: 15/02/2024 Date of Ruling: 22/03/2024 MKEHA,J: In the present application, the applicant is moving the court to find out that, the claims filed under Taxation Cause No. 61 of 2023 arising out of Commercial Case No. 141 of 2022 are fictitious and unjustifiable. That, the taxed amount is excessive, unsupported by valid documents and that the colossal amount awarded was not proved as required by the law, wrongful and contrary to the principles guiding taxation of costs. The applicant has asked the court to review, reverse and set aside the decision of the Taxing 1 | Page Master and thereafter proceed to tax the Bill of Costs in accordance with the law. The application is brought under Rule 7(1) of the Advocates Remuneration Order, GN. No. 263 of 2015. It is supported by an affidavit sworn by Mr. Mvano Macdonald Mlekano, the applicant's advocate. On the other hand, the application is contested through a counter affidavit affirmed by Mr. Malick Khatib Hamza, the respondent's advocate. The application was argued by way of written submissions. According to the applicant's position, the taxation principle breached by the Taxing Officer is contained in Order 41 of GN No. 263 of 2015. The said order provides as hereunder: 'Bills of costs incurred in contentious proceedings under this part shall be taxable according to the rates prescribed in the Tenth, Eleventh and Twelfth Schedules to this Order.' The learned advocate submitted that, in taxing the instruction fees at TZS 75,000,000/=, the Taxing Officer wrongly relied on the 9th Schedule which was inapplicable in the circumstances of the case which was before her. 2 | Page And that, in doing so, the clear provisions of Order 41 were ignored. According to the learned advocate, the Taxing Officer ought to have applied the 11th Schedule to tax the Bill of Costs before her. The learned advocate for the respondent was insistent that the Taxing Officer was correct in taxing the bill of costs pursuant to the 9th Schedule which deals with contentious proceedings. He thus urged the court to dismiss the application. It is true that Order 41 instructs that taxation in respect of contentious proceedings be taxed according to the rates provided under the 10th, 11th and 12th Schedules. Whereas the respondent was of the position that the Taxing Officer ought to have proceeded to tax the Bill of Costs under the 11th Schedule, the said Schedule provides for scales for presenting or opposing Petitions for winding up of a company, dissolution of marriage, presenting or defending applications under the Law of the Child Act, presenting or defending applications for prerogative orders, instituting or defending garnishee proceedings and related matters. As a matter of fact, it is the 9th Schedule that provides for scales of fees for contentious proceedings for liquidated sum in original and appellate jurisdiction. There 3 | Page was no dispute; the proceedings which resulted to an order for costs were contentious. Under section 26 (1) and (2) of the Interpretation of Laws Act, the headings of Parts, divisions and subdivisions into which a written law is divided form part of the written law. However, a marginal note or footnote to a written law, a heading to a section, regulation, rule, by-law or clause of a written law shall be taken not to be part of the written law. The heading under the 9th Schedule reads: SCALE OF FEES FOR CONTENTIOUS PROCEEDINGS FOR LIQUIDATED SUM IN ORIGINAL AND APPELLATE JURISDICTION. This heading, in terms of section 26(1) of the Interpretation of Laws Act, forms part of the law regulating taxation of costs. On the other hand, the words ''costs in contentious proceedings" comprising of the marginal notes in respect of Order 41 of the Advocates Remuneration Order, 2015, pursuant to section 26(2) of the Interpretation of Laws Act, are taken not to be part of the law governing taxation of costs. Whereas the 11th Schedule provides for Scales of presenting or opposing Petitions for winding up of a company, dissolution of marriage, presenting 4| Page or defending application under the Law of Child Act, prerogative orders, garnishee proceedings and related matters, the 9th Schedule provides for fees payable in respect of claims involving contentious proceedings for liquidated sum in original and appellate jurisdiction. The original suit resulting in an order for costs subject of these proceedings was Commercial Case No. 141 Of 2022. Amongst other claims, the Plaintiff had claimed for a declaratory order that transfer of 240 shares to the 1st defendant was ineffective for lack of balance of consideration of USD 1,100,000. This claim falls under the 9th Schedule rather than the 11th Schedule. The Taxing Officer was therefore justified to tax the bill as she did. For the foregoing reasoning, I make a finding that, the application is without merit. It is thus dismissed. DATED at DAR ES SALAAM this 22nd day of March 2024. JUDGE 22/03/2024 5 | Page Court: Ruling is delivered in the presence of Mr. Fares Kabitina holding brief of Mr. Simon Lymo learned advocate for the applicant. 6| Page