20161222 TZHC Dar es Salaam

IN THE HIGH COURT .OF TANZANIA · . (COMNIERCIAL DIVISION) ··

AT DAR ES SALAAM MISCELLANEOUS COMMERCIAL APPLICATION NO~ 216 OF 2016 .. ,, . :' (Arising from Commercial Case No. 11 of 2012) . RUSTAMALI ABDALLAH FA.ZAL & MOHAMED FAYAZRUSTAMALI.t/. :........~~ APPLICANTS/Ll. HOLDER SIMBA PIPEL.INE PRODUCTS.

VERSUS PANGEA M!NE!RJ:,LS LlMITfD ·. ..........,.. ........... ' . '. ·. . - '.''.•· RESPONDENT/ . . . J.. DEBTO . .. . ' . 16° No,emb,•, S. 22" Oecec,be,, 2016 . , ~~ n_. -_-_- rJ] -. , .· . - .,,--'.1- .; JI, - , .,.,.,.- •[ RULING· ··. <· . . ·· ·. ':'\ i.J>/J~ [ r. ~ - ✓I.)) - u f-lJ ~~!~;P~;:::~~;~:amali Abdallah Fazal and M ~ a m ~ ~ J t ) • : •. Simba Pipeline Products (henceforth "the decree holders'') and th! respondent Pangea Minerals Limited (henceforth "the judgment debtor'') were, respectively, plaintiffs and defendant in Commercial Case No. 11 of 2012. That case was decided for the plaintiffs. Later, the decree holder filed . . a bill of costs claiming a total amount of Tshs. · 71;371,839.06. In a ruling of -- 31.08.20t6, the Taxing Officer of this court (A. H. Msumi - Taxing Officer) taxed that bill at Tshs. 15,471, l 70/81. The rest of the amount was taxed off. . . . This irked the decree holders. They have thus, .by way of chamber summons~ made a reference to this court under, essentially, the provisions of Pa·ragraph 7 (1) & (2) of the Advocates Remur1eration Order, 2015 - GN · No. 264 of 2015. The application is supported by an affidavit of Sylivatus Sylivanus Mayenga, an officer of this court and courts subordinate hereto, save for the Primary Court. The grounds for reference are enumeriated at para 6 of the ~-- --·•--· ,....: - --affidavit:,·They go thus:·,--:-:~---'---·-- :-~-- -- -:--:-~- · ----,-:--c'"·".'!-" ·· ·-. · ·-:·., ··/: - · · · 1. The Honourable Registrar erred in law and in fact by determining the i bill of costs presented without seeking aid arid putting weight to the i • proceeding of the main case and therefore rebching to the unjust ' I conclusion . as a result taxed the . . bill at the minima{; su·m; .

2. Upon being admitted by the Taxing . .· Officer that. a:i considerable . . amount .. of laboui" was employed by. nature. by the applica!nt in conducting both_ . ,. . rhe main and the counterclaim and upon being ju~tified that th~ matter . . . . . w_as of ·complex nature, it was an error on both acts and law for the~·· : if . ' Taxing Officer to tax ·both instruction fees at the tune ·of Tshs. 11,818,127/75 contrary to Paragraph lS (a) to :cc). to the Advocates Remuneration Order, GN No. 264 of 2015; 3. The Taxing Officer erred in law and in fact by taxing off items 61 to 68 of the. bill of costs and reach to a conclusion :that are part: of the instructions fee contrary to what is provided by items _of, the Eighth Schedule to the Advocates Remuneration Order, GN No. 264 of 2015; 4. The Taxing Officer erred · in law and in fact by ignoring or confusing proceedings altogether by his faHure to rule that the main case bei~g largely conducted at Mwanza Registry and in the presence of proof of · both .air tickets and other costs involved, the applicants were justifiable to be awarded the a~·ount as presented in items 14 to 60; 2 5. The Taxing Officer applied wrongly his overriding discretion by reducing an award to an unr.easonable ·figure and more particularly by ignorir1g the submissions by the· applicants;· 6. The Taxing Officer erred in law and in fact by his failure to

give tonsideratiod·to the nat.ure· of the matter, its lengtM and the subject matter of it; and,t ". : ·,, :: 'i.'' The- -taxing-· Officer ~rred in law - and in fact~ by .grving .errcineous interpretation. of •tri'e··;term:JJrintipaJ sum as a result failed to rule that the interest on ti4~' ~r;paid :·ihv~ices w~s-litigated and also forms part of . j ' By an agreement of the parties which was blessed by the court, this application was disposed of by way of written submissions. The court fixed -_the-submissions ·schet(~i1l\4iti1:.Whitt{the parties have cornpfied. .. ..: ,:·,:. ·, Arguing for the 1 t::terencei ML ;Sylivatus Sylivanus Mayenga,; for .the decree holder consoiidated the rrst.and. fqwrth, and the second and sixth grounds. The thlrci and seventh· grounds·.of referenc~ wf:re argued separately. On the first and fourth gg)l.inds of reference, the learned counsel kicked off by stating that the award of.costs are discretionary but that the same should be. exercised judiciously not ~arbitrarily -without due regard to the rules. He submits that the record,.of the case has it that the case was instituted on . . 09.11.2012 and finalized '9i7 22'.04-.2016, that it was lodged in ·Mwanza and later transferred to Dar :.es Sa:laam.and therefore the attendance was made in two different registries, the atr tickets and hotel bills: were properly presented, · among others. · He thus

submits thc1t the costs in items 14 to 60 con·cerning • • • • • • .~ • ••;,. • • •A ~ •~ ~ . atteridance were supposed to be taxed ·c;is presented. The learned counsel 3 has made· a heavy· reliance on . Ri'chard. Kuloba's Judicial .H.ints on Civil Procedure, 2nd Edition, LawAfric~, at p: 117;:to buttress his propositions._ On the second and s_ixth 9!_oundsf t_he lea_rried coun,sel submits that it was well . noted by the Taxing Offi~~rth~t the·~ain ~uit the subject ~f th·e bi-II of costs· --- -- .,• , .~- ·-·--~" vvas complex and a lot of ·labour ·had been employ~d in its prosecution. He c~~te~ds\h~t {h~- ~;~ 'is~)6i~~~io~s~a~d-:/1~~ ~; ~~n-~~~~~s ~e~e :flied ~~d. later admitted in evidence; :that. several preliminary objections were raised · ·"·• · and a lot of. efforts ·were :used · in disposing them:·· that, the plaint and counterclaim were professional IV prosecuted and,oefended. : A lot of research ·. , . :, . was done at every ·stage '.and''.:various· authorities were· relied upon by the plainti'ffs. That the case involved hearing by filing w_itnesses' statements plus exhibits intended which i;r1~olve(:l a lot-of labour. In the premises, the learned .counsel, for the decree liolder. arguC=s that:it:wa·s unfair for the Taxing .officer • • • • • ' ; • ' • ,-' • • • • < ·to treat ,the .:fees chai·geable by invoking th~ . '. ' . -9 th Schedule" of the ' .. - Advocates . .• ··

.Remunerati.on Order, 2p1s: ·. According>tq him~ ~he circumstances of the r · ·.rnatt~r, fees fo be charged were exceptional, ahd t~erefqr,e it W8$ upon the taxing Officer -to corisider. the· import 1of Paragraph. 15 (a} to (c) of the . . . ·. . Advocates Remuneratioh Order, 2015;, · Under paragraph 15 .(a) to (c) of. the Advocates Remuneration . Order, 2015, he submits, the Taxing. Officer is mandatorily .· ·: . .- required . to ,take into account . . the three considerations (a) to (c) enumerated under the Paragraph.- Again, ' .. the learned counsel referred to, Richard Kuloba's Judicial Hints on Civil P_rqced~re, at p. 136 to bu~r.ess the_ proposition that the Jaxing Officer, ,in · e_xe_rcising his di~c;r~t[qn, •must take into consideration_ the general con du.ct .of proceedin9s including the. preparation of the case. .in particular, the _authorities ·. ·. . - ' ' .. ' .studied and canvassed and the fads, files and documents collected . . 4 Qn the third ground,-..the.!earned co.unsel submits thatTshs. 546,550/-= we 1e . c-laim_E=d 'under items ,61-to :68 covering costs for printing and ph~tocopying ~f pleadings. Th~ learned counsel submits. that these items are chargea~e under item 2 of the "8 th Schedule to the Advocates Remuneration Order, 20115 as separate from instruction fee. - The same mistake. was committed In respect of items 3, 4, S and. 6 of the bitl of -costs, he

argues. Again, t r learned quotes p: 1.32 ·of:Judit:ial -Hints - on· ·civH Pi-oced:u·re· for.the poi pt that the Taxation Officer" whn~ awarding instruction fee, must bear in mi~d I and he has to_ consider the other. fee aJlowed jn _the bill and which have be1n duiy awarded other thar;-::, disblffsemehts in respect of the wor_k to which a~y such allowance applies. He ther:efore states that drafting of the documen s . ::., and disbursements cannot be _dumped under one head of instruction but th t . they are asep,:rate ~--~ci dlk~};:12ti~~ V~o"~-k pe~or:n~d... . The fifth grou·nd has not been argued. On the last ground, the decree hold -r ~OrTlj;lair,s th~:t the T~xir1' g Officer err'.~d i~ la~/'and in fact by giving erroneo S . , ..·_ . _-. , . - . : ·. . . . ,- . -· I pr·indp~!- surr.1.: ~s--a result ~~iled to rule that t~e interpretation of th~. ~erm. interest on the unp-aid invoices was litigatecf an·d. also forms part of t~e · principal sum. He arg.ues -that _the Ta_xing OfficE!r treated the sum of Ts 94,652, 180/== as. a liquidated sum but _that he was required to in~lude t: e unpaid invoices as part of the principa~·sum; He relies on Judicial Hints · !n ' Civil Procedure to contend.that where the. successfully party was deprived of goods or money by reason·.ofa wrongful act. on the part of the defendant, the party who has been deprived of use of goods or money to which he

is · entitled should be compensated for· such c;leprivation by the award of interest. On the basis· of the -foregoing, ·the learned counsel for ,-the decree. hold~·r beckons this court to rectify.tri·e taxed bili accordingly. ' 5 Responding; the learned counsel fo_r .the judgment deotor, .s_ubmits in . respect. . of grounds one and four of: reference th~t.tbe.Taxing Officer g_a_ve weight to the proceedings in the main suit and exercise the discretion to tax the bill ju_didously .. He a~gues that acc'?rding to.the 8 th Sch~dule; item 23 (c) and (g) . ?f the Advocates Remuneration Order, 2015, the decree holder ought to h~v~ .. ~·· ' .·. :. : ' , -- ·-- - - · -cl~arly-and~ specifically- shown-the~breakdown of. his- .expenses-in-the _.case:,.;.. __·;~,:-:-~, - . • • ==-~-.> " < I ' • • The. he failed to establiJh what'. exactly were _th·e :costs incurred: in eacn trar1saction an·d the exact time·· spent. in the ·courts; t~at is; appearances i~ Mwanza an~ Dar es Salaam .. There having been. ~~certainty, the learned~ .• . i.-.:-. ' - ·.>":-.· ,, :·· ·.·•.· ·· .. : >. . . . · . . !: .. ·.' . :·. counsel argues, the Taxing Officer,· in the ii'ght . . -- .. -. .· . . •... . -. . . : ~. of Pa;ragraph 12 (1) of the ... · .-.. . .. . Advocates Remuneratiofr.Order/ 2015 had a· discretion to allow or hot to allov{i = .. l : .,•:, •• I •• -1 ! such costs, ~i :. ·_ ...'\:·_: ~: .'-· •' -. ; '::, .. . pn the second: and sixth- grounds the learned. counsel f6-r the. judgment debtor- ..-·: ....... ·... ·. ·contends · that. the. Tax_ing._ Officer taxed.the ·. biil at t!,e .t1Jne of Tshs. •: 11,:81-8~127/75 basing o_n. Paragrapl1 12 . (1) or' the. .. Acivpcates . . . Remuneratiori1 ·. Order,.

2015. He argues that.the.Taxing . Officer,_ . . in . th~:light . .' qf . . Paragraph . 15 (a) to (c) whic_h · must a_lways· be read together with ,Paragr9 ph 12 (1) -of the Advocates Rernunerotiqn Order, 20.lSl ·_did consider all the circumstances i surrounding the .case, including its nature, .length and subje~ matter an~ '' reached·a fair decision ·which is well founded. Regarding the third ground,· the learr:,ed counsel contended that the learned Taxfng Officer was correct in holding that items 61 to 68. form part of 0 instruction fee, He made reference to George . Mbuguzi . VsA. S. Maskini [1980) ·rl.R 53 and Paragraph 12 (l). of the Advocates Rerr:iuneration Ord~r, 2015 to support this proposition. 6 -1 On the last ground, the !earned counseLJor t.he j~dgment debtor submits that . . . . . total amount claimed in-the plaintwas.Tsh$; 94,652,180/= and therefore the ' ' · Taxing Officer was correct to-peg th~ ca_lcu_lation5· on that amount. Having summarized the· learned ·rival ·ai-gu-ments by b~th lear~ed counsel for ... ·,,· 'the parti~s, the ball is no~ in ~; cou~ to' determin~ grounds for reference as · - put by~the .learned ~ouriseL for_ the-decree -holder._-;- I shaUf9_~e. them in the ·manner presented by the leani.ed·, c~unsel 'fo;· the' d~c~~e- hoid.er as well as in the manner rebutted b)'the learn_~d couiis"el f~;·the ju_dgment debtor.. ' 'I : • ' .• .i . > Before

confronting the grovnds·. for<reference-, · let ime state at· this juncture ·· .. ' that taxation powers are di·s_cretio11al iUpon>the Taxing Officer and a court wm not interfere uniess·- it is satisfied that the samei was based on a wrong principle -· see Pardhan Vs Osman,•- [19£9] · i . . E4 :528 (HCT) and George .. j . Mbuguzi (supra). ThE: r~ason ,NtW such powers, especially on the quantum o:f instruction -fees, sho;~ld' ~e le~ ;;ithin th~- ~mp ire: ~fth~ Taxi~g Officer was ~ : : ; . ~- __ . . .; ,·..' .'·' .. , . . . , ' .. . . . , ' ' ' . . :~ : . : ' ' ., '. ·~ , ··.. . ;'_ : . . e:xp!air1i::d . wlth .. -suffident.!u~idlty . .. •... . by this court (Hamlyn, . . ' :· .• . J,) ··, iQ the PardhaJJ , .: '. .· ........ .,·.·· case {supra) "as follows: ",.. judges, lacki.ng· ·. the experience ·of taxing Qfficer·s 1 will. not interfere with the quantum aiiowed :as an instruction ·fee upon taxation, unless it is manifestly so high or so low that it calls for interference by reason of some misdirection • :1aving -occurred or some wrong principle having ' . been adopted." 7 ,, . The same principle: is applicable in -the. Court of Appeal - see: Gautam , Jayram Chavda Vs :Covell Mathews Partnership Taxation Reference No. 21 of.2004 (unreported}.: ,_ Having laid the basis f9( my decision, let me now revert to the· grounds for reference. , In the first and fourth grounds as

consolidated in their arguments before me, the learned counsel for the decree. holder complains that the Taxing Officer ·erred in law and in factin ignoring the glaring fact that the proceedings of the , .. ·,., . mains suit were at Mwanza,cand .in Dar es Salaam and -that he did not seek any aid in the proceedings _:of the main. case. · On this premise, it is the contention of the decree Jmlder 'that it was justifiable to be awarded the amount as presented in items 14 to 60. The learned Taxing Officer, divided • • - • ' J • • . dairns under- these items. 1nto··~w~ groups: attendance in cou_rt for purposes of _filinq documents and appearance in court. in compliance with court orders. T'~e approach tak_en in_ m'y _vie~v _wa~ quite correct. The first category appeared under items 14, 1·7, 22, 24, 34, 37, 51, and 58. In ·arriving at the . ' conclusion that these form ~art of the instruction fee,. the learned Taxing Officer relied on the foU~wing ~issage by Webb-C.. J.. in The Matter of the Stamp Ord;nance/ 1931 and :in The matter of The. Companies Ordinance, 1.931 and the Bohemba Hines Limited Misc. App. 1 of 1940 quoted by Bramble J. in Sianga Vs Elias. (1972) HCD n. 66 and recited by Samatta, J. (as he then was -- he later became Justice of Appeal and Chief • . Justice of Tanzania) _in George Mbuguzi (supra) p. 56:_ "Ih my opinion the word ''instructicms';- in our rules·_ should

not be construed as if it were a term of art, but should be construed in relation to the . 8 conditions and circumstance of the country, in. . which those. -rules · are to be operate. : Here. a·n advocate is both solicitor. ,and bar.rister-1- and the, meani~g that has be~~ given and in_ my judgment rightly given, to the words ''Fees for instructi6ns'' was that th.ey are intende·d to cover, not merely -··- - the atteridahce -~~r-a SOli~itor wheii'he t~ket·his-'-·,a 0 ·- .'. ' .. . . . . : ·, ': .:'. .. . . . ,. . . ·.:..: . clients. instructions, but all his· work, other than that which is elsevvhere· ~peclalfy provided for, in lookinrr :up tbe: Jaw· and:: preparing the case for " . trial; in·,other words th~y ,correspond· rightly to tt,e fee rnarked on {.:Ounsel's-brief/' · : Tht2 . ,, ' learned ... , Taxing . :()tficer aiso . tax~d.'6kit~ms . ' 14,._17;, . 22, 24, 34, 37, 51, · . . and .58 under the -prete>-.1 that·, -i~struction fees shoui·d , not be .narrowly . - . \~te~~reted. to me~n .~onsultation fee·:: \/Vith utrr1o~t- due respect to the learned Taxi'rig Officer, I think, ·he·· misconstrued the · tenor ·and purport of the statement of VVebb, C] in, the Bohemba Mines Limited. I read nothing from the quote as to suggest that the costs incurred- in attending court are part of the instruction fee. If my reading of the quote. is correct, which I think it- is, Webb CJ had in

mind ..work in looking up. the law and· preparing the case for trial which correspond t0 the prCJfessional work of an a.dvocate for _which 0 he has been paid as instruction fee.· I do .not read the quote to include transport expenses incurred in attending the court as part of instruction. fee. , ,, . . The foregoing said, it is my considered opinion that the learned Taxing Officer erred in putting items 14, 17, 22, 24,· 34, 37, 51, and 58 as falling under the scope and purview of instruction fee. In the premises, I find and hold .that 9 the decree holder was· entitled to be awarded items· pres~nted under items 14, 17,· 22, 24, 34, 37, -s·1, ·and 58. These item·s · made a subtotal of Tshs: 3,338, 734/= [3,219,7-34/= ]'-which I grant the decree holder. Regarding the second catego_ry of attendance,. ·the lei:frhed Taxing Officer . has ~ _ stated in his ruling that the le~rned counsel for the decree hplder told the ,---_.,, ~ 4;r - - . - - - .. ;:'"T~.= · - ' - - . - - - -....- - - - - - : - -... ·. .-:-·---:- • --:·.·-:--- ~-. ~: -~~--:. ·.:.. - court that they included. a1r ·tic::kets .to' Mwan~a and hoteJ costs. How~ver~ the-· learned . . Taxing Offlce~ ~a-~. . _a-~_r~ct-~d . . . by the . . arguni~ntsbrought to the for~ . . . b;_ the learned counsel . fQr the judgment . ·,.: . . : . ·. d_e_btor _to the effect that no specific . .. . . cosf . ~ . . ~ for . . a. - particular .

activitv. was .proyided.__ . . ·· .::·_. . . ,·.: . . He added .th.at it. coulc;I . .. be mor~; convenient if the 1~9rned counsel f9r the d_ecree t:iol9er · showed whic~ - appearances were dor1e .if"\ MWan_za and· whi.ch in Dar es Salaam.·· Instead, all . of them showed und~r ~. ~~a~ket :_~tate~~nt -~f -~appearing in .court for Ruling"J . • . .. • . . ,, . . . • •,·•. ·. ,• •• • •• , • ' • • • • • • •••. • . •· • . I There was also· an. unexplai;:,ed_ variat_ion of -figures in respect of th~ same . ~i;pearance/attendahte;·. -f~r.:-,e~ample it~r~s )8.under which Tsh~. 8.00;000/ · ;ft• . . '..... . was claimed and items_ 1_9 and 20. under which ~rshs. 545,000/= is· claimed . . . ,.••... ··: ·' ··. -.. . . . . ... ·.. . for ; .. ;·' ea_ch_. This ailment _co~pl_ed_vvith the fact that the decree holder failed to point out the exact time spent ill c;:ourt and in the light of Wambura Chacha V~ Samson Cho:Wa (1973):_~~T N·o.· 4 in. which .it was stated that a litigant I' .'.....-' .' . . . I • • I ought to be fairly reirnq_ur$~d for the costs which-. he incurred and given th~ I',., . . ' uncertainties . . wt1ich. the d~c~ee holder . . ·. . ... _: ·. did not. dear, .the.· le~rned. Taxi~g Officer ··•. ·. . :. ·• .· ~ ~ . taxed Tshs. 30,000/= per each item. The rest of the amount was taxed off. I have given due. cohsideratio"n to this· complaint. I have read the taxation . proceedings ·as

well -as the ruling of the Taxation Officer. I think the learned Taxing Officer was justified to tax the bill under these items as he did. The • ~. • .• • a • ,..r • • • • • • • Bill of Costs under these itenJ_s was not quite explicitly presented by the learned counsel for the applic~nt . a~d . this has been addressed by the learned . 10 Taxing Officer quite aptly at p. 8 of'the ruling. As can be deciphered at pp. 7. and 8 of the Mr. Mayenga for the decree holder intimated to the court that the ·court attendances '•and appearances were made in Mwanza .and Dar es '. ; . ,:, Salaam but did not specify .which appearances or attendances,were done in . ·,. -~ : : .-·; .' .. which city. · Neither did the counsel for the decree ~olders specify time spent:- in those appearances, As corr~ctly·stated by the·lea;rned Taxing Officer, what ·· ,, · ; ·. :_. - ·-• __,_ --·---:~•-----·th~-1eari1edc6i1risei-cffcFwa~-t~\um·p--up-the it~~s u'nBe"r-the. he~rcf '~·atte·ri'd'a~:ce~ :· : ,~,:i "/::: "> '· in court". At the hearing of. •the taxation, the learned ' counsel . for the decree=i •. holdeis did not make himself amply clear cin this'. He is. recorded as saying: "As the pl~adings provide, this matter originatad from. Mwanza. The firm is based\ in Dar es Salaarr1, it vVas necess'ary to send a re~resentative . . . • . ' ,. . j . . • l · at lv1wanza sub-registry. I6 .most cas~" the mode· . . .

. of transport-. (;sed lYy :the plaintiff's counsei was tr,we+ by flight and v~h.lie waiting for the co-ndLict of the· matter lt irivo!ved ·staying· at hotels·. · Those . circumstances necessifated costs.·_ It is evidenced : . . ' . . by various air. tickets and tax invoices from differerit hotels. It is justifiable that the amount claimed . i~ each item is justifiable. ·_ It is my .. ·. ·. ' humble subrnissi.on that the amount claimed in items 14 to 60 be taxed as presented." What was submitted by t!le learned counsel for . the decree holders, as already . sai.d, lacked details. What he did is to lump the -items tog~ther coupled with .· air tickets and tax lnvoi~es leaving the court to pick and choose which items corresponded with which arr tickets and· tax invoices. This act of leaving the 11 '· ·court to. pick.the chuff from th~ grain:e~.hlbited irresponsibility_on the part of · the .counsel for the decre.e holders. .He is himself to. blame.. It was not the court's duty to sort out which ·appear:ar;ices were at Mwanza sub-registry and which ones in Dar es~Salaam. The. covrt record_ ju_st shows the case was ins~ituted. at M~anta. sub~;r~gJ~t:ry. bu~ ·_.the -:~p~am. do.es not show which -~-~..,,..-~-. ·· .appearances .. . . . . . .. were ·d~n~-~t- . ~~1riza·:an-Cl\.Vhi·~h~dnes: .. . ~t:-Dar ·es···Salaam:,; . In the · !:' 1·~ .~~-. ~ . absence of clarificatib°hs frorii. th'e

decie~ ho_ld~r -it would be. unsafe and perhaps occasion injustice· o~ the p·art of the ·judgment debtor to tax the . . . amounts as presented; - _In:: the .premises,_ the court rightly exercised its - _... , · .. -. di~cretion. to grant th~ T·st,f 30,0o'O/= pjo rata :and I ·do not find any justification to meddle with the discretiOn of the Taxing. Master. The .. second ·and· si.)rt!l,i grot;rids :·are' ·a: to.rn_plaint. :0(1 t~e · taxin'g of both instruction-fees.-at. the· total tune·of Tshs. · 11,81:8,12_7/75 without due.regard to nature, length and subject matter 'of the- main suit. I have· read the ~uling ·of the Taxin'g· Officer be'twee~ the lines. At page 3 of the ruling, the Taxing Officer made· it amply clear that the suit ·was neither . simple nor ·complicat~d:- · - s·~sing on· item 6 of the 9 Schedule to· the th Advocates Re111u~eration· dr·der; 2015, the learnec{ Taxin.g Officer s~ated, quite . .. .. . .·.. . . .. .. .·. I correctly in ·my -view, that the· amount of Tshs. 94,652,180/= claimed in the . . . . plaint attracted a charge ·or betwe·en 5%. and 8%. Having considered .the nature of the main suit; the learned Taxing Officer . . found 5% to be reasonable · and· taxed the amount at Tshs. 4, 732,609/= basing on that percentage. T~e same ·.treatinerit was accorded to the counterclaim · to which Tshs: 7,085/518/75 was awarded .. R~spectfully, I think, the Taxing

(?.fficer, having · found the case to b_e. neither simple not complex, .by making a •finding that S0io was• rea-soriable, he did hot exercise his discretion jud_icially. By the phrase . -· · 12 "the suit was neither simple nor complicated", it seems ·to m_e, the learned · · ... Ta)<ing Officer mea11r·'.the:_ stii't. !fed. somewhere fn· . between simple· and cor11plicated suiL . Basjng · on that, the<. discretion would have been properly . exercised if the percentage:' was pegged somewhere in between 5% and 8%. Pegging it at 5% whlch· is the minimum threshold· provided under item 6 of • the 9th Schedule to the Advocates. Remuneration Order, 2015; would have -i;~·e·~ app~;it~''if 'h·e fou-nd the:s-Uit-to~b~ ~impi~------T~-d;-~h~t he'd.id amounted~··.:,···., ... to a misdirection befitbng . ihte1ference of · this ·. court. Having given due •···•,· .. , . . considerationto the tirt:Llmstances of the.main case, I think 6½ 0/o would have . ·;;:- . been appropriate for instruction fee on the suit. I therefore alter. the Tshs. 4,732,609j= awarded. ~'s So/o. • ·. ! - o? the' J~incipal sum to 6,239,170/=; which is. •. ' ' .• ' ' ' ✓ ~ • • • • ... 6 1h.% of the prin<.:ipal sum. The same principle is -applicable in ·respect of the counterclaim. The awarded amount of Tshs. 7 ,085,5l8/7S- which was 5% of the principal sum of the counterclaim is replaced with 'Yshs. 9,211;174/38 Which is 6½%

of the principal sum. Next for consideration is the third ground which is a com·plaint regarding taxing off items 61 to 68 ~ the bill of costs because, according to the Taxing 1j .. Officer, they were part. ..of ~: the . instruction fee. These items covered the ~ ·.· printing and photocopying. of various document in the suit. The Taxing , . :-'·. )'· , .. Officer taxed off these expenses . . . because they are or supposed to be .covered . . ' - . by the instruction fee in the light of George Mbuguzi (supra). I have read George Mbuguzi an'd· . . have, found nowhere suggesting that such kind of . expenses form part of the instruction fee. In my view, the Taxing officer ought not to have ·treated these items; that is, items 61, 62, 63, 64, 65, 66, 67 and 68 as part• of the instruction fee. These are expenses incurred 13 · normally paid from .the client's accol:lnt separate from the:instruction fee paid . . to an advocate. Inthe_premises,.I-find ano hold:thatthe Taxing.Officer erred in principle in taxing·these .items off. : .The :decree holde~s were- therefore entitled: to a total of Tshs . .546,550/== under these _items. • The last ground for consideration is a compiaint the subject of the seventh ~ ~ ~ , ; . " _ - - -.. ~,t' ·.:•~,.._.:_,..-'--"-;"~...a.:~.-..,...:,:.._ ... __ _::,__::._.,. . ..• ee ~ / - effect _th.at the· ·Taxing Officer. erred in ·1aw a.nd in fact" ~

. w:· . . --· •~ ,;,,,.,._..,;.~ ground which is to the·· • • • • .•. ••• • ._ • ·: . . . . •· •• ·•' • • I by giving erroneous interpretation of the term principal sum as a result failed · - ., ·:-·· . t6 rule that the interest 'an. tf1e u~-paid invoices was litigated and also forms . . .. . '. part of the principa,i sum. The learned counsel for the decree holder .contends that·the· lea~ned. Taxing\)fficer .. . , .. 'ought ..... . to have· . . considered intere?t ;n unpaid :"'. . ,. involces as part .of ttie principal sum. Respectfully, I find myself unable to ._. • ' , I , swim the· current of :the le~rned •counsel: for the ·_q.e~ree holder. on this . . . . . contention. . I find and . hold. :int~rpretation-.· given ·to tt)e pri.il.cipal .. · surn ! by the·~.-_: 0 Taxing Officer is but correct. •· In sum, .in addition to the_ . . Tshs.' .1;110,000J;=· . . . granted· pro . . . rata ·a'nd . T$hs. _. 2,543,043/06 which was taxed a_s presented under. . items. 3, _4, s, · 6~ 7, 8,- 9, · 10, 11, 12, 13 and l3B,. tt1e ·decree holder is also ·entitled to: 1. Instruction fee of Tshs. 6,239,170/=; which is 6½% _of the' principal sum; 2. Instruction fe·e. of Tshs.·· 9,211,174/38 which is 6½% of the pr.incipal sum of the counterclaim; • 3. Tshs. 3,338,734/= presented under ·items 14,_ 17, 22~ 24, 34, 37, 51, and 58; and - 4. Tshs. 546,Ssoi= presented urider items 61,. 62,· 63, 64, 65, 66, 67 and 68._ - 14 In the end of it all, this reference $tands allowed to the extent shown _,.J- • with costs; o'rder ad:ordingly. ...... ,,.. ... DATED at DAR ES SALAAM this 22 nd day of Dec:emb"er, 2016. y--~,·_;·:-~ ··~--~J:~_._; ··. ·--~-~,-· ~-~~·.:·· ··-':" ,.;.. J. C. M ■- MVVAMBEGElE · , JUDGE· t '.· ·., t j ..t.~ : ..... ,·.:.- ... - /,·~-~ ·.-+ •'· . '.· ~-~~:.. , ·,_:, ,. ···.':.·. 15