SELYA NTABO LYAJIGA REFERENCE

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB – REGISTRY OF SHINYANGA AT SHINYANGA CIVIL REFFERENCE REF. NO. 202411281000030121 SELYA NTABO LYAJIGA...…….................................1st APPLICANT YUNGE NTABO…………………………………………….2nd APPLICANT VERSUS JOSEPH NKILIJIWA…………….…………...…..….……RESPONDENT [Application from the decision for District Land and Housing Tribunal for Kahama at Kahama.] (Hon. Amamaria Kapinga.) dated the 23rd day of July, 2024 in Taxation Cause No. 27 of 2024 ----------- RULING 4th & 28th November, 2024. S.M. KULITA, J. This is a civil reference case. It has been filed by way of chamber summons under Order 7(1) of the Advocates Remuneration Order, 2015. The Applicant herein seeks for this Court to examine by reference, the 1 decision of Taxing Master, dated 23rd July, 2024 in the Taxation Cause No. 27 of 2024, to see its legality and fairness. The application is supported with an affidavit sworn by the applicant’s Advocate, Mr. Samwel Boniphace on the 10th day of August, 2024. In a nut shell, the records provide that, the applicants herein filed a Land Application case No. 61 of 2023 and Misc. Land Application No. 51 of 2023 at the District Land and Housing Tribunal (DLHT) of Kahama against the respondent. In the reply thereto, the respondent raised a Preliminary Objection. Upon hearing the said preliminary objection on the 5th day of September, 2023, the applicants conceded. That resulted to the strike out of both applications, with costs. Eventually, on 31st October, 2023 the respondent filed Taxation Cause No. 27 of 2024 at Kahama DLHT. The said Taxation cause was heard and finally determined on 23rd July, 2024. That decision awarded costs to the respondent at the tune of Tshs. 3,046,000/=. This award aggrieved the applicants, hence, this application for reference. On 8th October, 2024 the matter (this application) was scheduled for hearing through written submissions. Both parties complied with. Mr. Samwel Boniphace, Advocate, represented the Applicants whereas Mr. Mackanjero Ishengoma, Advocate, represented the Respondent. 2 Submitting in support of the application, Mr. Samwel Boniphace firstly prayed to adopt his affidavit in support of the application to form part of his submissions. He went ahead contending that, at the DLHT the respondent demanded to be paid costs, among others, the instruction fee at the tune of Tshs. 3,000,000/=. Mr. Samwel Boniphace contended that, they do not dispute the other awarded costs but only to the said instruction fee of Tshs. 3,000,000/=. The reason behind according to him is that, the applicants’ applications which were struck out were not heard on merits (not fully tried). They were just struck out through preliminary objection, of which, the applicant immediately conceded. With this stand, Mr. Samwel Boniphace was of the views that, under such circumstances, it was wrong to charge the instruction fee basing on the 9th Schedule to the Advocates Remuneration Order, 2015. He insisted that, as long as the respondent’s preliminary objection was not opposed by the applicants, the proper charging fee would have been Tshs, 500,000/= as per item (1)(m) of the 11th Schedule to the Advocates Remuneration Order, 2015. With this regard, Mr. Samwel Boniphace prayed for this court to set aside the costs granted by the trial tribunal and substitute the proper ones. 3 In the reply there to, Mr. Ishengoma submitted that, Counsel for the applicants misdirected himself by contending that, the Applicants’ act of conceding with the preliminary objection at the DLHT amounts to the said applications being un-opposed. He said that the DLHT was right to award the instruction fee under item (1)(m) of the Advocates Remuneration Order, 2015. To the contrary, Mr. Ishengoma’s stand is that, what amounts to the case being regarded un-opposed includes; the said case being un-attended, having no opponent, and abandoned with no one trying to compete against. He said that, this is as per The Black’s Law Dictionary, sixth edition. With this position, Mr. Ishengoma cemented that, as long as this case was attended by both parties, the averment that the case was un-opposed is not true, hence should be disregarded. Mr. Ishengoma went ahead stating that, essentially, the instruction fees are payable at the commencement of the case. With this, he meant that, he was already paid by his client before the case was struck out. He went ahead contending that, as the gist for bill of cost is to compensate the winner the costs that he (winner) had incurred in entertaining his case, then the applicants’ move tends to defeat this notion and justice as well. 4 Further justifying the decision of the Taxing Master, Mr. Ishengoma stated that, as long as the disputed property values at Tshs. 49 million, he was of the views that, fee should be charged under item 5 of the Advocates Remuneration Order, 2015, which is between 8% to 10% of the value of the disputed property. With these submissions, Mr. Mackanjero Ishengoma, Advocate, urged this court to sustain the trial tribunal’s decision. In rejoinder, Mr. Samwel Boniphace, Advocate, just reiterated his in chief submission. That was marked the end of both parties’ submissions. I have keenly gone through the entire pleadings, parties’ submissions and authorities supplied. In this application, parties do not dispute the following facts; one, that the applicants had instituted the Land Application case No. 61 of 2023 and Misc. Land Application case No. 51 of 2023 at the DLHT of Kahama against the respondent, two, that the respondent herein above was represented by an Advocate, three, that, following the respondent’s Advocate raising a preliminary objection, the applicants’ applications got struck out with costs, fourthly, that the governing law in this application is The Advocates Remuneration Order, 2015. 5 In this application, the only issue which I find disputable is whether the instructions fee which the respondent’s Advocate deserves should base on item 1(m) of the 11th Schedule or item 5 of the 9th Schedule, both to the Advocates Remuneration Order, 2015. Before I go far into determining the said issue, I find it better to first put forward the following; the law governing the issue in question is as correctly suggested by both parties to the case, that is, the Advocates Remuneration Order, 2015. Hereinafter, this law will sometimes be referred as TARO in this ruling. When you go through this law, you can find it having separate scales for charges on un-contentious and contentious matters. This law, under Rule 41, has specifically stated schedules which apply for contentious matters. The said Schedules are, the 10th, 11th and 12th. The said Rule 41 provides; - 41. 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 contentious matters have been defined under rule 40(2) of the same law, TARO, which provides; - 40(2) Contentious business shall include: 6 (a) proceedings in the High Court of Tanzania and all courts subordinate to the High Court where an advocate is allowed to appear; (b) proceedings in arbitration; (c) proceedings in a tribunal established under any written law; and (d) proceedings in any other judicial or quasi- judicial body. With the above quoted provisions of the law, as long as the parties to this application had proceedings at the DLHT for Kahama, through the applicants’ Land Application No. 61 of 2023 and Misc. Land Application No. 51 of 2023, it therefore follows that, remuneration charging should be guided by the scales provided under the 10th or 11th or 12th schedules. However, as long as the 10th schedule of TARO deals with scales of fees for the Probate and Administration Causes, my attention cannot be on this schedule. The same applies to the 12th schedule which deals with scales of fee for Bankruptcy Proceedings. Therefore, my attention shifts away from these schedules, simply because, they do not deal with land matters proceedings which is the issue in the current application. On that account, I remain with the 11th schedule only. 7 However, the same law (TARO) provides for another schedule which also deals with scales of fees on contentious matters. That is the 9th schedule. This schedule deals with scale of fees for contentious proceedings for Liquidated Sum in original and appellate jurisdiction. Now our main question is, were the parties to this case disputing over Liquidated Sum there at the trial tribunal? The answer is definitely not. This is because, at the trial tribunal, through the said Land Application No. 51 of 2023 and Misc. Land Application No. 61 of 2023, the parties were disputing over a piece of land. For that matter, the only avenue that the respondent’s advocate should have charged his client, was through the 11th Schedule to TARO. Now again, the question is, which item under the said 11th Schedule to TARO fits in this case? Having gone through all items under this schedule, I found item (1)(m) of the 11th schedule fits in this current case. The said item provides, as I here under quote; - 1(m) For applications, notices of motion or chamber applications, (including appeals from taxation) (i) Un-opposed ……………………………………. 500,000 (ii) Opposed ……………………………………… 1,000,000 8 At this juncture, for determination of the instruction fee that the respondent’s advocate should have charged, the issue as to whether the applications were opposed or not, should be determined first. With this issue, counsel for the applicant stated that, as long as at the trial tribunal the applicants conceded the respondent’s preliminary objections on the hearing date, he thus formed an opinion that, the applicant’s applications were un-opposed. To the contrary, counsel for the respondent stated that, the applicant’s applications were opposed. He gave the reason that, he, as the advocate attended and competed against the applicant’s applications. My finding on this issue is that, as long as at the trial court the respondent competed against the applicants herein by filing documents against the said applicant’s applications, which include the preliminary objections, and that he did so through an advocate, it means the applicant’s applications at the trial tribunal were opposed. With this answer, according to the scales put by the law, the respondent’s counsel, should have charged his client the Instruction Fees amounting Tshs. 1,000,000/= as per item (1)(m)(ii) of the 11th schedule. 9 However, I am alive that, under Rule 14 of TARO an Advocate may receive additional remuneration from his client, according to the circumstances of the case. The said Rule provides; 14. An advocate shall, where any business requires and receives exceptional dispatch, be entitled to receive additional remuneration as is appropriate in the circumstances, between the advocate and client. It means the Advocate is entitled to receive such additional remuneration and the Taxing Officer is empowered to allow such costs, upon being given facts as to the circumstances for such additional remuneration. This is as per Rule 12 and 15 of TARO which provides; 12.-(1) The taxing officer may allow such costs, charges and expenses as authorized in this Order or appear to him to be necessary or proper for the attainment of justice. 15. An advocate shall in business of exceptional importance or unusual complexity, be entitled to receive as against his client, a special fee in 10 addition to the remuneration as prescribed in this Order. The taxing officer shall, in assessing the special fee, consider following- (a) the nature of the place and the circumstances in which the business or part thereof is transacted; (b) the nature and extent of the pecuniary or other interest involved; (c) the nature and quality of labour and responsibility entailed; (d) the number, complexity and importance of documents prepared or examined; or (e) any other relevant circumstances. So longer as, in the records, the respondent never stated before the Taxing Master on the facts specified in Rule 15(a) to (e) above, which would enable her to assess as to whether the respondent’s counsel was correct to receive such additional fee of Tshs. 2,000,000/= from the Tsh. 1,000,000/= that he deserved, I find it that, the respondent’s counsel was not allowed to receive such additional remuneration. By doing so, the Advocate violated Rule 13 of TARO 11 which prohibits him to charge remuneration that exceeds the ones stipulated in the said law. The said provision states; 13. An advocate shall not agree or accept remuneration more than that provided by this Order. With the above endeavors that I have devoted to give, I find the respondent is entitled to only Tshs. 1,046,000/=, including the said instruction fee of Tsh. 1,000,000/=. The trial tribunal’s decision is thus varied to that extent. In upshot, the application is hereby partly allowed. Each party to bear its own costs. S.M. Kulita JUDGE 28/11/2024 DATED at SHINYANGA this 28th day of November, 2024. 12 S.M. Kulita JUDGE 28/11/2024 13