MSC

IN THE HIGH COURT OF TANZANIA MUSOMA SUB-REGISTRY AT MUSOMA MISC. LAND APPLICATION No. 0000842 of 2024 REFERENCE NO. 20240117000000842 (Arising from Misc. Land Application No. 151 of2023 in the District Land and Housing Tribunal for Mara at Musoma, Originated from Land Application No. 118 of2020 at District Land and Housing Tribunal for Mara at Musoma) STEPHANO MOTI NYATAGO........................................................... APPLICANT VERSUS WAZEE EKUNGU MINING CO-OPERATIVE SOCIETY LTD......1st RESPONDENT POA POA CO. LTD................................................................... 2nd RESPONDENT RULING 0^ & 2^ July, 2024 M, L KOMBA, J-: This is a reference to this Court from a ruling of a Taxing Officer in a Misc. Land Application No. 151 of 2023 which was delivered on 07 December, 2023. The application is preferred under Order 7 (1) and (2) of the Advocates Remuneration Order, GN. No. 264 of 2015 (the Order) by way of Chamber summons accompanied by the affidavit of Stephano Moti Nyatago who is the applicant. Likewise, the respondent filed counter affidavit in resistance of the application. Page 1 of 7 Applicant is challenging the award by the Taxing Officer to the tune of Tsh.3,618,000/= to above named respondent as cost of Land Application No. 118 of 2020 in which he was a judgment debtor. During the hearing of the application applicant was represented by Mr. Thomas Manyama Makongo while respondent was represented by Mr. Wambura Kisika both being advocates. In his submission, counsel for applicant, Mr. Makongo prayed his affidavit be adopted and faulted the taxing master by awarding costs to the amount of Tsh. 3,618,000/ while some other claims had no receipts or evidence for costs however, he did not mention the excess amount. He went on submitting that item (m) of the 11th schedule of the Order is to the effect that only amount advocate can charge his client on that type of case is Tsh. 1,000,000/. According to him the amount (Tsh. 1,000,000/) must include court representation and faulted Hon Chairman for awarding without considering the provisions of the cited Order because other expenses have to be included in the costs for advocate. According to Mr. Makongo, bill of cost is a special damages which needed the prove and that is the base of his submission that Hon. Chairman Page 2 of 7 awarded bill of cost as if it was general damages. So far as there is expenses which was consumed then there was supposed to be a proof except the filing fee which has government receipt. Counsel went on lamenting that the matter was very finalized at preliminary contrary to what was narrated in the ruling by the taxing master. He prayed this court to review all the costs. Mr. Kisika resisting the application on the ground that taxing master has the duty to analyse work done and was satisfied that in the amount taxed there is transportation, legal fee and Government payments. In analysing how an advocate can be paid, Mr. Kisika said the Court in Tanzania Rent a Car Ltd vs Peter Kimuhu, Civil Reference No. 9 of 2020, it was resolved that taxing officer has to look at the extent of work performed, complexity of the case, amount claimed and the fee. About the receipt, counsel cited the same case at page 12 that bill of cost is not necessary to have instruction fee by presentation of receipt, vouchers and or agreement of the advocate and the client. Counsel noted just as Mr. Makongo did that bill of cost is governed by Advocates Remuneration Order and some costs are provided therein, to him, it was not necessary to prove costs by receipts basing on cited case. Page 3 of 7 Mr. Kisika went on negate the issue of special damages and general damages as costs incurred in civil litigation has its own means of claiming and proving that's why there is Order and the taxing officer has a duty to verify except the filing fee because all records are within the case file. He prayed this court to uphold the taxing master decision on the bill and order respondent be paid what was decided. During rejoinder, Mr. Makongo submitted that he did not demand an agreement among the two (counsel and his client) rather, taxing master has to abide to the schedule in the Order as was insisted by the cited case law. So far as it was an application, Mr. Makongo said item (m) was relevant and the figure is Tsh.1,000,000/ and not more. I am called upon to find correctness on the decision of the taxing Master in Taxation Cause No. 151 of 2023 as cited above. Counsel for the applicant in making his points relied on item (m) of the Order which specified the amount to be charged. As argued by Mr. Makongo, it must be known that application of this nature is also guided by GN. No. 264 of 2015, the Order, which provide a wide range of discretion to taxing master. Page 4 of 7 Counsel for applicant complain that the amount is excess as the matter ended at the earliest stage and therefore there was no much work performed by the counsel for respondent and further; there was no receipt tendered to justify costs incurred. Mr. Kisika insisted that Taxing master observed the work done while awarding the said costs and that there was no need of tendering receipts. About time spend in determination of the main application, I had time to read records of the Land Application No. 118 of 2020 which resulted into the current faulted bill of cost and find that, the matter started September 2020 and ended in the year 2023 regardless it ended on preliminary issues but the time spend can be seen from court attendance in court record. Parties made submission on the point raised and I find there was a duty performed by counsel of both sides. Regarding the charge per item and the receipt, respondent did not dispute that he tendered no receipt during hearing and get refuge to the decision of the Court in Rent A Car Limited vs Peter Kimuhu (supra) that; '.....that in taxation of bill of costs there is no need of proof of instruction fees by presentation of receipts, vouchers and/or remuneration agreement because the taxing officer, among others, is expected to determine the quantum of the said fees in accordance Page 5 of 7 with the cost scales statutorily provided for together with the factors enumerated above.' In the matter at hand and from the record, items in the cost schedule as filed includes consultation fee, court attendance fees, preparation of defence and instruction fee. Mr. Makongo refer Item (m) of the schedule and insisted that the amount as law was not supposed to exceed Tsh. 1,000,000/. I had time to read the Order and find the minimal amount for instruction fee for opposed application is 1,000,000/. This matter had two parties and each had a counsel and they made submission. That means application was opposed. So far as counsel for respondent had no receipt to justify cost on instruction fee charged to his client, the minimal tolerable as per advocates Order is Tsh. 1,000,000/. This is the amount provided at the statutory scale. I find other listed items were at reasonable scale and some even at below standard set by law and need no receipt to prove. See Hotel Travertine Limited & Others vs National Bank of Commerce Limited Taxation Civil Reference No. 9 of 2006 CAT. The issue of specific and general damages is misplaced so far as there is Order governing the costs. Page 6 of 7 That being said, I find the reference succeed. I confirm the sum of Tshs. 1,618,000/= which is hereby taxed as a total taxed amount in Taxation Cause No. 151 of 2023. It is so ordered. DATED at MUSOMA this 25th day of July, 2024. K M. L. KOMBA Judge Page 7 of 7