final STEPHANO CLAUD SILAYO Tanz

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA SUB-REGISTRY OF MOSHI AT MOSHI CIVIL REFERENCE NO. 19483/2024 (Arising from decision Taxing Officer of the District Court of Rombo at Mkuu dated 6th August, 2024 in Taxation cause no. 8279 of 2024) STEPHANO CLAUD SILAYO:.……..…..….…………………APPLICANT VERSUS LIVING INYASI TARIMO:…...…………………………….RESPONDENT RULING 10th February & 4th April, 2025. A.P. KILIMI, J.: The applicant herein Stephano Claud Silayo has filed this application seeking to reverse and vary the decision of the taxing officer in a Bill of costs No. 8279 of 2024 from the District Court of Rombo at Mkuu. The application has moved this court under Order 7(1) and (2) of the Advocate Remuneration Order, GN. No. 263 of 2015 herein to be referred as ‘Remuneration order’ and it is supported by the applicant’s sworn affidavit. The respondent filed a counter affidavit to resist the application. The brief background facts of this reference as obtained from the record shows that the applicant herein filed an appeal against the respondent herein at the District Court of Rombo, Civil Appeal No. 04 of 2024. The appeal 1 was withdrawn with costs following the prayers by the applicant herein. The respondent filed a Taxation Cause No. 8279 of 2024 at the trial court claiming total of Tshs 3,120,000/= as costs incurred for instruction fees, drafting and service of pleadings. In the end, the taxing officer awarded the respondent herein Tshs 3,060,000/= as costs. Aggrieved, the applicant herein has filed this reference with the following grounds; 1. That, the taxing officer erred in principle by unfairly assessing instruction fees in respect of Civil Appeal No.4 of 2024 which was withdrawn at earliest stage. 2. That, the taxing officer unfairly and wrong assessed the claims made vide item 1,2, 3,4,5 and 6 which excessively taxed. 3. Any other relief(s) the Honorable Court may deem fit and just to grant. When this reference was called for hearing, both parties had legal representation. The applicant was represented by Mr. Emmanuel Pascal Karia while Mr. Julius D. Focus appeared for the respondent herein. With the leave of the court both parties agreed the matter be disposed by way of written submissions. In support of the application, Mr. Karia learned advocate for the applicant submitted that the amount awarded to the respondent by the taxing officer was unfairly assessed. He said that the Civil Appeal Case No.4 of 2024 was withdrawn at the earliest stages by the applicant, thus awarding 2 a total of Tshs 3,060,000/= contravened the principles in assessing instruction fees. He was of the view that among the costs awarded, it was unfair for the taxing officer to award Tshs. 2,500,000/= as instruction fees to the Civil case which ended at the preliminary stages as it was withdrawn at the earliest stage. The counsel commented that item 1(m) of the Remuneration order provides for amount to be taxed for application, notices of motion or chamber summons (including appeals) that if unopposed shall be Tshs. 500,000/= and if opposed Tshs. 1,000,000/=. Thus, he was of the view that the taxing officer excessively awarded the costs for instruction fees for the matter that was withdrawn at the earliest stages as it was not heard. Further the counsel submitted that the taxing officer erred in awarding costs of Tshs 80,000/= for four days scheduled for hearing while the matter was never heard. He added that the taxing officer wrongly assessed the claims in items 2,3,4,5 and 6 which were excessively. To support his stance on the view that the costs awarded to one part do not intend to punish the other part, the learned counsel referred the decision of Thinamy Entertainment Ltd, Resort Woeld Ltd and Costa Ginnakopoious vs. Dino Katsapas, Misc. Commercial Case No, 86 of 2018, High Court of Tanzania (Commercial Court) at Dar es salaam at page 6 and 7. Then he 3 prayed for this court to reverse and varies of the District Court decision in Taxing Cause No. 8279 of 2024. Replying to the above, Mr. Focus learned advocate for the respondent argued that the costs awarded by taxing officer was quite fair and reasonable. The learned counsel argued that it was the applicant himself who withdrew the said appeal on the date of hearing whilst the respondent counsel had already made preparations and did a lot of research before the said date of hearing. On the amount awarded of Tshs. 80,000/= for attendance fee, the learned counsel argued that the items claimed were for mention where the taxing officer only granted costs for hearing of taxation cause for two days only and not for hearing of the appeal as suggested by the applicant. The learned advocate added that although the taxing officer taxed the said amount contrary to the Renumeration order, which stipulates fees for attendance for mention to be Tshs 50,000/= thus for four days the taxing officer ought to have taxed Tsh 200,000/= and for two days for hearing attendance be Tshs. 100,000/= per attendance. 4 The respondent counsel had the view that the taxing officer exercised his powers judiciously and that there were no exceptional circumstances presented by the applicant for this court to vary the decision of the taxing officer. He cemented his point with the decisions of CRDB Bank PLC vs. Starpeco Ltd and Another, Commercial Reference No. 14 of 2022 (2023) TZHC ComD 73 and Tanzania Rent a Car Ltd vs. Peter Kimuhu, Civil Reference No. 9 of 2020 [2021] TZCA 103. Responding on the referred decision of Thinamy Entertainment Ltd, Resort World Ltd and Costa Ginnakopoious vs. Dino Katsapas (supra), the learned counsel said that the said decision is distinguishable with the case at hand as all items were taxed off and no other items were granted except for the instruction fees. He commented further to the cited item 1(m) of the Eleventh schedule to the renumeration order, that the same relates to appeals from taxation whilst the matter which was before the trial court was an appeal from the primary court. The learned counsel further invited this court to consider that the charged rate by the taxing officer considered the rate prescribed under ninth to twelve schedules of the renumeration order as observed in the case of the decision of Jane Jumanne Mwamwindi vs. Burton Twisa, Land Reference No.7 of 2023 5 [2024] TZHC 6728 (TANZLII), having argued as above, the respondent’s counsel prayed for this reference be dismissed with costs. Having considered the rival submissions from both parties, the issue for determination before me is whether the application at hand has merits. Briefly in respect to the arguments, the applicant herein is challenging the costs awarded to the respondent in Taxation Cause No. 8279 of 2024 that it was too excessive and unreasonable while the respondent counsel reply is that the costs awarded was judiciously and reasonable. Before I proceed with the merit of this matter, I wish to be guided by the principle that powers of Taxing officer are not to be disturbed save when the taxing master has applied a wrong principle or consideration in reaching his decision. This principle was well expounded by the Court of Appeal in Kitinda Kimaro vs. Anthony Ngoo & Another (Civil Reference No. 6 of 2016) [2018] TZCA 493 (TANZLII) whereby the Court stated; “It is a principle of law that, the decision of the Taxing Officer will be interfered with only when the Court is satisfied that the decision was arrived upon a wrong principle or a wrong consideration. Where there has been an error in principle the Court will interfere but solely on the question of quantum as regard to the matter 6 which the Taxing Officer is particularly fitted to deal and the Court will intervene only in exceptional cases.” Starting with the complaint that instruction fees charged were too excessive and injudiciously, I have considered the matter which was at the District Court of Rombo that it was an appeal from the Primary Court and that the applicant was the one who appealed and later withdrew from the case before hearing. I am mindful, as the principle stated above, it is also a well settled principle that the award of instruction fees is peculiarly within the discretion of a taxing officer and the court should warn itself to interfere with the taxing officer's decision unless it is proved that the taxing officer acted injudiciously and upon wrong consideration. (See Tanzania Rent a Gar Limited vs Peter Kimuhu, Civil Reference No. 9 of 2020 (unreported), and under Order 12 of Renumeration order. According to the ninth Schedule of renumeration order provides for the scale of fees for original and appellate jurisdiction for contentious proceedings, but the applicant in his affidavit did not disclose the original claim which was in his appeal at the district court so that did court could 7 have gauged in terms to know whether the amount awarded by taxing officer was justify in accordance to the claim. Meanwhile I have perused the counter affidavit by the respondent in this matter, it is the same, no evidence shows the proceedings or claims existed at original or appellate level which the bill of cost emanated, what is available in eCMS in only the taxation proceedings, thus this caused lack of that evidence upon this court could gave gauged and ascertain the amount awarded as instruction fees. I am saying so because the same could have enabled this court to look into the amount claimed so as to determine on whether the taxing officer did exercise her powers as per the Order. However, both parties in this matter had an opportunity to prove the claim at the trial court and appellate court through their affidavit filed in this court which in law is evidence admissible, therefrom this court could have taken judicial notice of what existed at the trial court and appellate level. (See Diocles Kamuhabwa vs Theonest Kamuhabwa, Civil Appeal No. 436 of 2022 [2024] TZCA 221 (TANZLII). Therefore, this being a court of law cannot assume the amount claimed by mere submissions of the parties’ advocates which in law their submissions are not evidence. (See Registered Trustees of the Archdiocese of Dar es Salaam v. The Chairman of 8 Bunju Village Government and Others, Civil Appeal No. 147 of 2006 (unreported). Therefore, since the applicant is disputing the said amount awarded as instruction fees was excessive and from what I have endeavoured herein above, in order to decide this claim, I resort to the law, according to the Eleventh Schedule of Advocate Renumeration order which provides for Costs of Proceedings in the High Court, Subordinate courts and tribunal, under item 1 (l) provides costs to present or oppose an appeal in any case not provided for, it states the Taxing Officer shall consider the sum reasonable but not more than 1,000,000/=. Therefore, since at this stage of reference I cannot ascertain or exercise discretion as Taxing officer, I hereby find the maximum sum of Tshs. 1,000,000/= in this item suffice to meet the justice of claimed amount as instruction fees. Another claim by the applicant is the sum of Tshs. 300,000/= awarded by Taxing officer as costs for preparation, stationeries and drafting the Reply for Petition of Appeal. First, I have scanned to see if the taxing officer reasoned for such award, and I find there is none. In fact , that was the whole amount claimed and awarded as it was claimed. According to 11th schedule of renumeration orders, item 2 provide for costs for copies and 9 amount is stipulated which in turn depend with the quantity used. The issue of drafting the reply in my view cannot joined in this item because goes to instruction fee due to its nature. Therefore, in view thereof the learned Taxing officer misconceived on apprehending this item hence used wrong principle, therefore, since the quantity was not ascertained and taking the nature of appeal from Primary court, I hereby substitute the said amount awarded to Tshs. 100,000/= which I think suffice for the work done in this item. In respect to remained claims, the taxing officer reasoned at page 3 of ruling and for reference purpose I reproduce hereunder; “Since the hearing did not take place, all days the parties attended to court will be reduced to cost Tshs. 20,000/ each, which will be Tshs. 80,000/= for four days and the court fee for filing reply to petition of appeal Tshs. 20,000/=, plus the three-mention dates for this taxation cause Tshs. 20,000/= each which will make total of Tshs. 60,000/=, two hearing date each Tshs.50,000/= will make total of Tshs.100,000/=.” I have considered the above reasoning and having considered it was an appeal which was not heard on merit, I am of settled view the Taxing 10 officer exercised her discretion judiciously for the amount awarded thus the above award are not disturbed. In view of my above findings, this reference is allowed to that extent. Consequently, I thus substitute Tshs. 3,060,000/= awarded by the taxing officer to Tshs. 1,360,000/= approved by this court as depicted above. In the circumstances each party to bear his/her own costs in this reference. It is so ordered. DATED at MOSHI this 4th day of April, 2025. X JUDGE Signed by: A. P. KILIMI Court: - Ruling delivered today on 4th day of April, 2025 in the presence of Mr. Emmanuel Karia learned advocate for the Applicant. Respondent and his advocate absent. Sgd: A. P. KILIMI JUDGE 4/04/2025 11