tanzania electric supply company ltd vs edna chambiri the administratrix of the estate of the late alphard weema chambiri 2021 tzhclandd 678 28 october 2021

IN THE HIGH COURT OF TANZANIA LAND DIVISION AT DAR ES SALAAM REFERENCE NO.02 OF 2020 (Originating from Bill of Costs No. 16/2015 (Hon. Kabate R, Taxing Master) TANZANIA ELECTRIC SUPPLY COMPANY LTD APPLICANT VERSUS EDNA CHAMBIRI (Administratrix of the Estate of the late Alphard Weema Chambiri....... ..RESPONDENT RULING Date of Last Order; 24/8/2021 Date of Ruling: 28/10/2021 T.N. MWENEGOHA,J This is an application for reference made under Order 7(1) of the Advocates Remuneration Order, 2015 (GN No. 264 of 2015) (the Advocates Remuneration Order). The application is by way of a Chamber Summons supported by an affidavit of Diana Francis Mahatane, Advocate for the applicant. Brief summary of the case is that applicant and respondent were parties in Land Case No. 137/2007, whereas the cause of action against the applicant was trespass over their piece of land located at Tarime District Musoma Region. Judgment was delivered on the 13'^ day of February, 2015 and it was ordered TANESCO to pay the respondent Tshs 210,000,000/= as compensation for trespass over their piece of land. That following this judgement the respondent filed a Bill of Cost in Misc. Application No. 16 of 2015 against the applicant, with 119 items totalling to Tshs 61,646,220/=. When the matter was scheduled for hearing on the 20^^ January, 2016 and on the mentioned date applicant was represented by one Thadeus Mwabulambo and he discovered that the case was called for taxation on the 13^^ day of January, 2016, and the same was heard exparte. Ruling was delivered on 13^^ day of April 2016 In favour of the respondent herein. Being aggrieved by the said bill of costs decision applicant has filled this application for the following orders: A That, this Honourable Court be pleased to call the file In Taxation of Bill of Cost No. 16/2015, Edna Chamblrl vs. Tanesco, and usurp Its supervisory powers and verify Itself and see Its appropriateness In taxing the said Bill of Cost exparte to the tune ofTshs. 61,646,220/=. H. Costs ofthis application be provided. m. Any other reliefs this Honourable Court may deem just to grant This application was heard by way of written submissions whereby the applicant was represented by Ms Diana Francis Mahatana, learned advocate and the respondent had the services of Mr Deogratias Mwarabu, learned advocate. Ms Diana submitted that the total amount of the Bill of Cost lodged in this Honourable Court was Tshs. 61,646,220/=. The Taxing master in taxing this bill of cost taxed the said bill of cost from item 1 to item 110, and disregarded Items 111 to item 119, but the total amount taxed surprisingly awarded the entire bill of cost of Tshs 61,646,220/=. She further submitted that In respect of costs of Demand Note and service of the same this Honourable Court has pegged the PMtem to be Costs of Demand Note and service for the same, being Tshs. 1,250,000/= and the taxing master 2 taxed the same as being appropriate. That the costs of writing a demand note and serving the same cannot be served separately, because practise call that the same is charged within the Instruction fees, and that the same is part and parcel of the Instruction Fees. Submitting on the instruction fees, she stated the respondent have used the decretal amount of Tshs. 210,000,000/= x 3%, this is according to the scales of the 9^^ schedule of the Advocates Remuneration Order GN No. 263/2015 and therefore the order of Tshs 25,134,000/= is the high. The appropriate instruction fees are Tshs. 6,300,000/=. The respondent has failed to attach legal receipt proving he was paid the alleged Tshs 25,134,000/=. She submitted that the position of the law is that Advocates have to issue receipts for payment to any service to a client. He referred the case of Professor Emmanuel A. Miema vs. Manaqinq Editor Dira Ya Mtanzania & Others Civil Reference No. 7/2017, where it was held that; "It follows therefore, that since advocates are required by the law to Issue EFD receipts upon payment for services rendered, claims on such payments shall be proved by submission EFD receipts as evidence''. In respect 18% VAT costs she submitted that instruction fees in law does not attract 18% VAT, as was clearly stipulated in Reference No.Salehe Habib Satehe vs Maniit Curmukh Sinoh. She further contended on item for transport and accommodation from Musoma to Mwanza to Dar es salaam that since the cause of action arose in Tarime Musoma Region hence it is extremely difficult to understand why the case was instituted in the High Court at Dar es salaam, and not the High Court of at Mwanza. Item 60 to item 100 caters for private transport including flight charges to and From Mwanza and DSM and accommodation and these expenses are extremely high. She submitted that the charges are inflated and have no legal justification or receipts to. She cited Section 110 of Law of Evidence Act, Cap 6 R.E. 2019, and Order 58(1) of the Advocate Remuneration Order G. N. 263/2015 provides clearly for submissions for receipts and vouchers for the expenses incurred In respect to item 5 and 6 Preparation and Registration of Valuation Report and Revising and registration of the valuation report she submitted that the cost of Tshs. 11,850,000/= has no legal justification and no receipt as proof. In respect to item 24 Tshs. 30,000,000/= as costs for attending mentions and judgement is extremely high taking into consideration the Counsel for the respondent already been paid instruction fees and Tshs. 20,000/= is reasonable amount for attending mentions and judgment while Tshs. 30,000/= is reasonable in respect of costs for attending hearing and mediation. She submitted that the case be remitted back to another Registrar of this for re taxation de novo inter parties. In reply Mr. Mwarabu submitted that the cause of action between parties was not only trespass but also invasion and encroachment to respondent's property. He submitted that the ruling of bill of costs in Misc. Application No. 16 of 2015 did not disregard items 110 to 119. At page 1 paragraph 1 of the typed ruling the court observed,'The applicant.... Fifed 119items claiming for a total of Tshs. 61,646,220/=^. At Part II the ruling also stated p' artII contains the disbursement in the tune ofTshs. 362,500/='?iK\6^ at page 2 of ruling the statement We submission made in respect ofitem. 1-119' proves the court did consider all Items 1-119. In regard to transport costs, receipts presented are consistent to page 2 paragraph 5 and Exhibit P.2 of the Judgment on main suit which states that the land is situated at Tarime, where there is no rail transport or airport but small air strip for chartered planes. Therefore, to serve costs, respondent being an old lady, had to travel by road to either Musoma or Mwanza to catch a commercial flight rather than charter a flight in an airstrip in Tarime. On issue of demand notice, he submitted that the stage of demand notice counsel is yet to be engaged to prosecute the suit. Since parties' differences are yet to be contentious. Differences pointed in demand notice may be redressed even without instituting a suit in Court in this respect, had the applicant removed its high-tension masts upon receiving demand notice the suit would have not been at all instituted in Court. The costs charged corresponded with the Invoice No. 043 and receipt no. 514 both dated 29^^ March, 2009. The costs incurred are Tshs. 1,250,000/= for demand notice and Tshs. 1,200,000/= for research as per agreement dated 29^^ March, 2007. Payment of research were supported with invoice no. 0792 and receipt no. 788 dated 15^^ May, 2010. He contended that the applicant counsel cited the case of Sahehe Habib Salehe taxation without giving proper citation or attaching the said case. But instruction fee falls under section 29(1)(b)(ii) of the Value Added Tax Act, Cap. 148 R.E. 2002. Therefore, advocates in private practice are subject to deduction of tax. He further submitted that instruction fee is payable by client whatever the outcome of the matter for which advocate's service were engaged and are not depending upon any award of costs by the Court or subsequent occurrences. The applicable provision then subsisting were the Orders which are in support of Section 54 of the Advocates Act, Cap. 341 R.E 2002 which states: "54. Whether or not any order is in force under section 49 an advocate may make an agreementin writing with his ciient as to his remuneration in respect of any contentious business done or to be done by him, providing that he shaii be remunerated either by a grosssum or by saiary, or otherwise." He submitted that on 29^^ day of March, 2007 parties entered into a Retainer Agreement pursuant to Section 54 of the Advocates Act, Cap. 341 R.E. 2002 for payment of instruction fee of Tshs. 25,134,000/= an invoice was issued for that matter and these were attached and collectively annexed with Bill of Costs and marked EC I. Therefore, Respondent herein while filing for Bill of Costs in 2015 had not resorted to protection provided by Schedule XI of the Rules or item 7 of 9^^ Schedule to the Orders. The 3% envisaged in the Rules is not applicable in this instance. He cited the case of M/S Buckreef Gold Company Limited and M/S Taxplan Associates Limited by the High Court of Tanzania in Misc. Commercial Reference No. 3 of 2017 (Unreported) where it was held: "In contentious matters, the better practice envisaged by the Section 54 ofAdvocates Act(Cap. 341 RE2002)is for advocate and the ciient to agree at the time instructions are given or within a reasonabie time thereafter as to his remuneration in respect ofany contentious business done or to be done by him. Such agreements are required to be in writing." He cited a number of cases on principles governing taxation of instruction fee which I will not reproduce them here. But for purpose of record I will mention them and as such are; Premchand Raichand Ltd and Another v. Quarry Services of EastAfrica Ltd and Others(No. 3)[19721 EA 162, at 163, Tanzindia Assurance Company Limited vs RABCO Tanzania Limited, High Court Commercial Division Commercial Case No. 37 of 2006 (unreported) and MGS INTERNATIGNAL (T) LTD VS HALAISPRO-CHEMIE INDUSTRIES LTD (Commercial Case No. 3/2003) (unreported). Hotel Travertine Ltd versus National Bank of Commerce, Taxation Civil Reference No. 9 of 2006, (Unreported), The Attorney General v. Amos Shavu, Taxation Reference No.2 of 2000, George Mbuguzi and Another v. A. S. Maskini [1980] T.L.R. 55 (HC), That considering Land Case No. 137 of 2007 has taken more than a decade, pecuniary interest on land, nature and quality of labour counsel for Plaintiff, the liquidated amount charged and taking into account the inflation and interest not charged, the instruction fee paid to counsel was reasonable. He submitted the respondent relied on agreement as applicable in GN No. 515/1991 rather than rely on percentage as per the remuneration scale under Schedule IX of the GN. On issue why the main suit was filed in High Court Dar es Salaam he submitted the matter was dealt in the said court and in event the applicant had felt aggrieved, the remedy was to appeal on a ground of jurisdiction and not to sneak the argument during taxation. This Court should find the objection raised by the Applicant devoid of any merit. He further submitted that the respondent did attach ail the receipts with Bill of Costs which was served to the applicant and the respondent tendered all relevant receipts for assessment during taxation proceedings. With regard to the liquidated amount Tshs. 210,000,000/= of the subject matter he submitted that the figure applicant quoted is amount decreed by this Court which is not relevant for purposes of the taxation of instruction fee in this Court or by taxing officer. He argued that it is a settled legal position that proceedings in taxation of bill of costs are not a trial. No hearing but taxation is conducted. Witnesses are not called. Testimonies are not tendered on oath but annexed and accordingly referred to. No affidavits, discoveries, interrogatories or inspections allowed. Attached receipts when assessed by the court are merely 'annexures' not exhibits. That in accordance with Rule 55 of the Advocates Remuneration and Taxation of Costs, GN No. 515 of 1991 herein referred 'GN No. 515/1991 (Order 58 (1) of Advocates Remuneration Order, herein reffered to GN No. 264/2015), the repealed rules and current order receipts could be produced at taxation if required by taxing officer. The court invoked Order 11 and 12 of the GN No. 264/2015 (Rule 11 of the GN. No. 515/1991), and exercised it discretion by judiciously assessing the reasonability, fairness and justification of the items as supported by receipts annexed. He cited with reference the cases George Mbuguzi and Another v. A. S. Maskini [1980] T.L.R, 55 and Bin Mohamed El-Mandry and Another v. Hadija Bint All Bin Salehe 1956) 26 EACA. He submitted that the Decree Holder/Respondent filed the following documents: Certificate as to the folios, amended Bill of Costs to be Taxed, Judgment and Decree in Land Case No. 137 of 2007, List of documents to be relied upon including Receipts issued against instruction fee as per documents collectively marked as 'EC I', Receipts issued against reimbursable costs as per documents collectively marked as 'EC 11', Receipts issued against costs as per documents collectively marked 'EC III'. procuring various Court services such as fee for filing the Plaint, filing written submissions,filing fee for list of additional documents to be relied upon,filing fee for applications, filing fee for written closing submissions and fee for copies of Judgement and Decree. He submitted since applicant did not object taxing the disbursements as presented and receipts of which were attached during hearing then Tshs. 362,500/= as disbursements amount be taxed as presented. He differentiated expenses for representation for attending the court which carters meals, water and other Incidentals by the counsel that since advocate charges for hourly rates. These costs need to be reimbursed a total of Tshs. 28,800,000/= arrived after multiplying Tshs. 50,000/= per 15minutes for a total of 16 days (48hours) in 8 years 6 months. While referring to Order 61(1) and (2)of the GN 264/2015 he submitted that the transport costs were reasonably charge by taxing master if compared with the C.B. Ndege's case(supra). That transport charged was to and from Tarime to Dar es Salaam and the taxing master charged only an average of fourteen trips and average of two days stay for each trip in the whole nine years of suit being in court. Reasons for respondent's travels were to look for, engage and explain the dispute to counsel, sign pleadings and attend mediation, hearing and on judgment day and instruct counsel on bill of costs. He added that the respondent used his personal vehicle and hence no cab receipts can be attached but rather fuel receipts of which rates and receipts were annexed and presented. He submitted that receipts for air flights and fuel charges for private transport by road were attached in the bill of costs and hence the award of transport charges for respondent made by taxing master was not inflated. There was also fuel charges for road transport for land valuer (Receipt as per annexture EC III). He elaborated that the accommodation receipts (Bed and Breakfast) of respondent as per Item 94 to 110. With regard to taxi transport to and from the court by the respondent's counsel, Mr Mwaraabu stated that applicant's counsel has disqualified item 24 to 58 and proposed a flat rate of Tshs. 30,000/=without explaining why not Tshs. 50,000/= or Tshs. 60,000/= and that the rates presented by respondent's counsel are fair and just. He outlined each item and costs charged which ranges from Tshs. 20,000/=, Tshs. 30,000/= and Tshs. 40,000/- and Tshs. 50,000/=. He added that what applicant's counsel termed as transport and accommodation under Item 4 of Bill of Costs, he submitted that the item is actually on counsel attending and appearing the court for mention and had to pay for the trip on both legs at Tshs. 30,000/=. He further submitted expert's preparation, review and registration of valuation report (Annexture EC I) was also contested by the applicant's counsel but she did not have any basis of such challenges or give alternative costs. He submitted these costs were compulsory and the respondent filed and produced receipts for taxation for the tasks performed. Mr Mwarabu contended that, taxing master in Misc Land Application No. 16 of 2015 did not award costs for attending the proceedings before it. He invited this Court per Order 55(3) of GN no. 264/2015 to award additional charges for respondent's counsel appearance to court,(nine appearances to be exact), Tshs. 3,200,000/= being charges of Tshs. 50,000/= per 15 minutes or part thereof by total of 16 hours spent. Additionally, this court to award Tshs. 4,583,500/= as costs for counsel for the plaintiff in Land Case No. 34 of 2007, which took over eight years in court and counsel appeared more than 48 times for average of three hours each time. He contended that the respondent in Misc. Land Application No. 16 of 2015 deserves a total cost for taxation of Tshs. 7,783,500/=. As well he submitted that the respondent deserves costs in Misc. Land Application No. 255 of 2019 and the same will depend on the outcome of this suit, that the court now is ceased with opportune moment to order costs in favour of the respondent herein in Misc. Land Application No. 255 of 2019 to the tune of Tshs. 4,500,000/=. He further added that this present suit alone has lasted about a year and counsel for the respondent has and will enter appearance. Thus in addition this court should order for costs incurred by the respondent's counsel Tshs. 1,600,000/= which is arrived after multiplying Tshs. 50,000/= per 15 minutes or part thereof by total of 8 hours and Tshs. 6,650,000/= as costs for drawing up Referennce, counter affidavits, services, stationery, travelling, written submissions and all other incidental expenses. He finally joined hands in the prayer set forth in the Chamber Summons for this Court to usurp supervisory powers and satisfy itself and see approprietness of Bill of Costs in Misc. Appl. No. 16 of 2015 and award amount beyond Tshs. 61,646,220 to be taxed in favour of the respondent. He invited this Court to intervene by increasing the said award by taking leaf from Tanzidia's case, MGS's case or C.C Chandran's case (supra). In her brief rejoinder, applicant's counsel reiterated all what have been submitted in their submission In chief. He further submitted the Bill of Cost taxed in Misc. Application No. 16 of 2015 was from item 1 to 110 the total amount of Tshs 61,646,220/= which but the respondent's Certificate As to Folios is in respect of the same Bill of Cost for Items 119. He added that in charging a client in respect to Demand Notice and Instruction Fees has to follow the laid laws of the Country. He further reiterated what he submitted earlier with respect to the issue of VAT, transport and accommodation, preparation of Valuation Report, Revising, preparation and registration of the Valuation Report and attendance. He stated from the disparities committed by the taxing master the case should be remitted back to another Registrar of this Honourable Court for re taxation de novo inter-parties. The merits of this reference can be consolidated Into one ground, whether the decision In the Application for Bill of costs No. 16 of 2015 was appropriate, justifiable and correct. The applicant is dissatisfied with the amount awarded to the Respondent of TZS 61,646,220/= to the respondent. It Is on record that the applicant herein in Bill of Costs No. 16 of 2015 did not enter appearance despite several attempts of being served with summons to appear and the record shows that the applicant herein was duly served by Mr Msefya and Mwabulambo. Hearing was in turn made exparte. The applicant questioned the taxation of Item 1-110 and disregarding items 110-119 and still the same amount prayed was awarded by the taxing master. Respondent's counsel has contested this argument and submitted that the ruling did not disregard items 110 to 119. The amount prayed by the applicant in Bill of Costs 16/2015 was to the tune of Tshs. 61,646,220/= for Items 119 as shown In Certificate of Folios. I have perused the ruling of Bill of Costs 16 of 2015, on the 2""^ page of the ruling reads; "7776 submission made in respect ofitem no. 1-110 and even when the respondent were to appear and defend the appiication nothing was expected to chaiienge such a statutory figures. Again, at the last page of ruling (no page numbers provided), 2'^'^ paragraph it reads as follows; ''Having taken the position as discussed above, in the finai analysisIhereby tax the biii ofcosts at a grand total of Tshs. 61,646,220/= Miiiion asprayed by the applicant through item no. 1 to 110." It goes without saying that the taxing master considered Items 1-110 into reaching the taxed amount of 61,646,220/= as prayed by the respondent's counsel therein. I therefore find the argument made by the applicant's counsel holds ground. However, the taxing master awarded the same amount prayed for only items 1-110 without giving reasons as to why he disregarded Items 111-119. In Mbowe V Attilio Civil Reference i-D-70; 15/8/70; Georges, CJ had this to say; "I would not wish to go so far as to say that a taxing master shouldstate in detailthe reasons which led him to come to the conclusion to which he did come...I would prefer, therefore, to state that while itis desirable that taxing master should set out their reasons, the mere fact that they have not done so in cases where instructions fees are being considered should not be considered a fatal error in principle necessitating that the matter be remitted to be taxed afresh..." From the foregoing principle of the law, it is clear the fact that although the taxing officer has the discretion to give order as to costs, he is as well required to give reasons for the same. The taxing master in Bill of Costs No. 16 of 2015 has order costs at a tune of Tshs. 61,646,220/= for Item 110 r. items without giving reasons why he has disregarded the remaining items to 119 and still award the total amount as prayed by the respondent for all the 119 items. This inconslstence and illegality of the taxing master into arriving at the awarded amount cannot be overlooked and in my view has tainted the whole award in Bill of Costs No. 16 of 2015. For those reasons I allow this application and remit the application back to the taxing master to be taxed afresh. In doing so, the taxing master is ordered to determine how much has to be taxed in each item from item 1- 119. It is so ordered. Dated at Dar es salaam this 29^*^ day of October, 2021. EGOHA JUDGE