secularms t ltd vs ma kharafi sons t ltd 2023 tzhccomd 40 21 february 2023

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION) ATARUSHA MISCELLANEOUS COMMERCIAL REFERENCE NO. 02 OF 2022 (C/FTaxing Cause No. 2of 2022 .originating from Commercial Case Number 0$ of 2019) Between- SECULARMS (T) LIMITED...,.... . APPLICANT VERSUS M.A. KHARAFI &SONS (TANZANIA) LTD.... . RESPONDENT RULING Date of lastOrder: 20Ul February, 2023 Date of Rultng: 2T‘ February, 2023 MKEHA, X The applicant is moving the courtto be pleased to vary the decision of the Taxing Officer dated 21^ day of February, 2022 in Taxation Cause No. 02 of 2022 as it was taxed below the required scale set by the law. The other complaint by the applicant is that the Taxing Officer did not at all exercise her discretion judiciously thereby arriving at an erroneous decision. The application is made under Order 7 (1) and (2) of the Advocates Remuneration Order, 2015. The.same is supported with an affidavit of Mr. 11 F a g e Gwakisa Kasukulo Sambo, advocate for the applicant. On the other hand, the application is contested through a counter affidavit sworn by Ms. Winnie Evarest Muruve, advocate for the respondent. When the application was called for hearing, Mr. Gwakisa Sambo learned advocate represented the applicant. Ms. Winnie Evarest represented the respondent. Mr. Sambo learned advocate corhmenced his submissions by adopting the contents of the affidavit supporting the applicatioh to form part of his submissions. In the affidavit and the submissions by the learned counsel for the applicant, the main complaint is that the Taxing, Officer failed to exercise her discretion judiciously resulting ihto awarding only TZS. 2,000,000/= as instruction fees for a matter in which the claimed sum was TZS. 658,012,721/=. According to the learned advocate in terms of Item No. 8 of the 901 schedule to the Scales, instruction fees ought to be 3% of the claimed sum which is TZS. 26,320,508/=. In the bill of costs the applicant had claimed TZS. 13,570,000/= which according to the learned advocate was below the 2]Page required amount. The learned advocate submitted that the applicant had annexed EFD receipt.to prove that indeed, the claimed sum had been spent as instruction fees. In view of the learned advocate, the claimed sum was reasonable considering that some witndsses had been examined without forgetting that eight (8) exhibits has been scrutinized. The learned advocate submltted further that, the Taxlng Offlcer erred In taxing off Items No. 12, 17 and 20 which were for attendances. He also condemned the Taxing Officer for having taxed,off Items No. 24, 29, 32,37, 1 39 and 41. The learned advocate. asked the court to tax the dlsbursements as presented. Msi Winnie Evarest learned advocate submitted in reply that, the instruction fees awarded was based on the discfetion of the Taxing Officer. According to the learned advocate, it is not automatic that the applicant should be given what is provided by the Scales. The learned advocate submitted that the transport costs were taxed as per the law which sets TZS 50,000/= per attendance.The learned advocate insisted that it was proper to tax off the disbursements which had already been covered in the transport charges. 3 | Page The learned^advbcate'irisisted thaffi cbrisidering the .distance'frpm theteffice pf the\appljcantb.advpcate?tp;;the ; court, the awarded TZS. 20,000/= was more than enpugte The learnpd' advocate cpncjudedJthat, the blll ,of costs' had beeri correctly taxed. When.Mr. Saffibo roseto rejoln, he Inslsted that tfie Taxlng-©fficer dldript give reasons for ripttaxihg thednstructibri fees as per the Scales but at TZS. 2jpOOzOd0/W- tie;cphdemned jthe. Taxing- ©fficer fbr ignoririg the fact'that. ‘Whpreas.fe prigihahsuitcommehced ■at-Arusha,;the'same v/as' eoncluded ini E>ar es 'Salaam which was the feason for attaching; air tickets tb the application fbr costscwhfch weMdisregarded. Thetprily issuefor determinatipn js whether.the TaMpg Officer erred as to y/arrant intervention in the^mariherisoughtibythe adplicant..Myptartihg;ppint isi the decision in ^A3I ATHUMANI ISSA^VS. MWEITAMA MATATU (•|9'Q2j. TtR’372;tp the effect; that, J.udges will; in most cases not interfere Withl guestibns' of guantum because these are regarded as matters with which the taxing master is particularly fitted to dea! with. Butand that is a big "but" the court could interfere if the taxing rhaster clearly acted uoiudicially., In termUbf Order-fl:(lTof the AdvdcateS’Remuheration ^r<M,.the Taxing Officer is expected to tax the bill ofcostsas.per the Scales provided or else as jt appears to him to bejust. In the latter instance, reasons are to be nffered fnr nnt faxing the hill in fprms nf whaf the Srales prnvide. Tn the instant case, whereas the Taxing Officer appreciated thefact that/ ih awarding instruction fees -the work; Wne^ has :.to: be tonsidered, that, supportlng the clalm wlth recelpts:isffot:ofessence,:atthe;endof the:;duy,, shefoffered no jeasons for awarding TZS. 2,000,000/- in lieu of what is provided uhdef the-Scales. Thdcsame thing happened to tfdnsport costs. Whereastherewasnodispute thatthepaftieshadtotravel tobar esSalaam gif tickets were ignored withoutoffering reasons for the decision. Those are d^instancesdifstifyihg interference by this court for- a reason that, ihdeed, her Worship:the:Taxihg Officer, acted'tihjUdiciOusly. . Tortheffbfegping reasohCthe ehtiFOrulih^and fihdingsof the:Taxing ©fficer in Taxatipn Cause No. 02 of 2022 are set aside. I direct freshtaxation df'the 5::|P^ge entire bill of costs before anGther Taxing Qfficer of cGrnpetent jurisdiction. lt is^so-helGk Dated atARUSHA thisRl^day'of Febriiafy/ 2023. CLP. MKEHA JUDGE 21/02/2023 Court: Rujihg is deliyered in theipresence. of the parties' adyocates. C.P. MKEHA JUDGE 21/02/2023 6j P a.ge