Misc

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA LAND DIVISION AT PAR ES SALAAM MISC. LAND APPLICATION NO. 17903 OF 2024 TUNU HABIBU MANENO.................................................APPLICANT VERSUS AMINA ATHUMANI................................................... 1STRESPONDENT COAST AUCTION MART COMPANY........................ 2nd RESPONDENT RULING Date of last Order: 12/11/2024 Date of Ruling: 18/11/2024 LALTAIKA, J, The Applicant herein TUNU HABIBU MANENO filed this application under the provisions of Order 7(1) and (2) of the Advocates Remuneration Order, G.N. No. 264 of 2015. The application was filed by way of a chamber summons and is supported by an affidavit sworn by the Applicant with accompanying annexures. When the application was called on for mention 22/10/2024, Ms. Maria Mwanjwango, learned Advocate appeared for the Applicant. The Page 1 of 9 Respondents, on the other hand, enjoyed the legal services of Mr. Richard Mwalingo, learned Advocate. Parties opted to dispose of the application by way of written submissions. Leave was granted and the following schedule was ordered: Applicant's submission in chief: 28/10/2024, Respondents' Reply on 4/11/2024, Rejoinder if any 6/2024 Mention to ascertain compliance with the order and schedule date of Ruling 12/11/2024. I take this opportunity to commend the learned Advocates for meeting the deadlines as per the scheduled order. The next part of this Ruling is a summary of the submissions by parties followed by my analysis of the law and the consequential order. Ms. Mwanjwango explained that the Applicant's claim concerned the Bill of Costs in Taxation Cause No. 12 of 2023, which arose from Miscellaneous Application No. 201 of 2021 at the District Land and Housing Tribunal for Bagamoyo. She argued that the Bill of Costs was unreasonably excessive, unsupported by legal proof, and marred by errors and illegalities. She pointed out that the taxing master, before awarding instruction fees, was required to observe the principles established in VIP Engineering and Marketing Ltd v. Citibank Tanzania Limited, Civil Application No. 24 of Page 2 of 9 2019 [2021] TZCA, which had adopted principles laid down in Premchand Raichad v. Quarry Services (1972) E.A. These principles, Counsel asserted, were that costs should not deter access to justice for all, the successful litigant should be reasonably reimbursed, the remuneration level should attract worthy recruits to the profession, and consistency should be maintained in cost awards. She contended that the instruction fee of TZS 3,000,000 awarded in Taxation Cause No. 12 of 2023 was excessive and unreasonable. She noted that the matter originated from an application for objection proceedings, categorized as a miscellaneous application, for which the instruction fees should not exceed the rates prescribed under Item l(m) of the 11th Schedule of the Advocates Remuneration Order, 2015. Ms. Mwanjwango reiterated that the taxing master must exercise discretion within the limits set by law and that the scale for such matters was explicitly provided under Order 39 of the Advocates Remuneration Order. She further raised grievances concerning the award of TZS 1,500,000 for transportation costs and TZS 1,000,000 for document preparation. According to her, these amounts were excessive and unsupported by evidence. She noted that transportation costs appeared to have been Page 3 of 9 charged twice and for dates beyond the ruling date. She emphasized that such costs were already covered under instruction fees and highlighted that no itemized evidence was presented to justify these charges. Ms. Mwanjwango also argued that the taxing master had acted contrary to Order 46 of the Advocates Remuneration Order, 2015, which requires any deviation from the prescribed scale to be certified by a High Court Judge for special reasons. In this case, Ms. Mwanjwango asserted, no such certification existed to justify the increased costs. She stressed that the costs awarded were neither necessary nor proportionate for the conduct of the litigation. Finally, Ms. Mwanjwango pointed out that under Order 48 of the Advocates Remuneration Order, where more than one-sixth of the total amount of a Bill of Costs is disallowed (excluding court fees), the party presenting the Bill for taxation is not entitled to taxation costs. She submitted that the Bill of Costs in Taxation Cause No. 12 of 2023 was so excessive and unreasonable that the entire proceedings should be nullified. In conclusion, Ms. Mwanjwango prayed for the Court to decide in favour of the Applicant by quashing and nullifying the decision of the trial tribunal on the grounds presented in the submission. Page 4 of 9 Mr. Mwalingo, on his part, began by identifying the issue for determination as whether the Applicant had demonstrated exceptional circumstances warranting interference with the Taxing Officer's decision or whether the Taxing Officer had failed to exercise judicial discretion properly. He asserted that it is settled law that a taxation reference must be based on a point of law or on the ground that the taxed bill was manifestly excessive or inadequate, citing Asea Brown Boveri Ltd v. Bawaziri Glass Works Ltd and Another [2005] 1 EA 17. He further explained that courts generally do not interfere with the exercise of the Taxing Officer's discretion unless there are exceptional circumstances, referring to Gautam Jayram Chavda v. Coven Mathews Partnership, Taxation Ref. No. 21 of 2004 (unreported). He noted that the principle established in that case emphasized that courts only intervene where there is an error in principle, as questions of quantum fall within the Taxing Officer's expertise. Addressing the instruction fees, Mr. Mwalingo argued that the TZS 3,000,000 taxed by the Taxing Officer was neither excessive nor inadequate. He noted that the Respondents, who opposed the objection proceedings, were represented by two advocates who appeared for both Respondents, as reflected in the pleadings. He pointed out that under Paragraph l(m) of the Page 5 of 9 11th Schedule of the Advocates Remuneration Order, 2015, the instruction fee could have been TZS 4,000,000, considering the number of Respondents and their legal representation. However, he emphasized, the provision does not explicitly address fees for respondents opposing an application and primarily describes fees applicable to applicants under certain conditions. Thus, he maintained that the amount taxed was reasonable and in line with statutory provisions. On the transportation fees, he explained that the advocates representing the Respondents travelled from Dar es Salaam to attend proceedings at the Tribunal, first in Kibaha and later in Bagamoyo. He argued that the transportation costs of TZS 500,000 taxed by the Taxing Officer were justified, considering that the Advocates Remuneration Order, 2015, provides an attendance fee of TZS 50,000 per 15 minutes under the Eighth Schedule. Mr. Mwalingo remarked that, in practice, court appearances often exceed this time frame and humorously suggested that even "angels in heaven would be puzzled" by the Applicant's contention that the Taxing Officer had not exercised his discretion judicially. Page 6 of 9 Regarding the TZS 1,500,000 claimed, Mr. Mwalingo clarified that this amount consisted of two separate transportation charges: one for defending the objection proceedings and the other for prosecuting the Bill of Costs application. He outlined that TZS 500,000 covered transportation costs incurred from October 11, 2022, when the Bill of Costs application was lodged, to February 5, 2024, when the ruling was delivered. Additionally, Counsel asserted, TZS 1,000,000 was charged as legal representation fees for prosecuting the Bill of Costs, as provided under Paragraph l(m) of the 11th Schedule. He emphasized that these charges were reasonable and based on the legal and factual circumstances of the case. In conclusion, Mr. Mwalingo submitted that the application lacked merit and prayed for it to be dismissed with costs. He argued that the Applicant had failed to establish any point of law or demonstrate that the taxed bill was manifestly excessive or inadequate, thus providing no grounds for the Court to interfere with the Taxing Officer's discretion. I have dispassionately considered the rival submissions. I have also thoroughly examined the annexes and the court records. The issues for determination are: Page 7 of 9 1. Whether the Taxing Officer erred in principle in the assessment of costs. 2. Whether the taxed amounts were manifestly excessive or otherwise unjustified. The guiding principles for taxation are well established in the case of Premchand Raichand Ltd v. Quarry Services (Supra), as reiterated in VIP Engineering & Marketing Ltd v. Citibank Tanzania Limited (Supra). These principles, as articulated by Counsel for the Applicant, include ensuring costs are reasonable, accessible, and consistent with justice. On the issue of instruction fees, the Court finds that while TZS 3,000,000 may appear substantial, the nature and complexity of the objection proceedings and the fact that two advocates represented the Respondents justify the award. However, the Taxing Officer is bound to adhere to the schedules provided under the Advocates Remuneration Order, and there is no evidence suggesting the taxed amount contravenes these provisions. Regarding transportation allowances, I find merit in the Applicant's argument that some charges extend beyond the ruling date. However, Mr. Mwalingo's clarification that the transportation costs covered both defending Page 8 of 9 the objection proceedings and prosecuting the bill of costs is persuasive. Nevertheless, the absence of detailed documentation for some charges raises concerns about their justification. Considering the foregoing, I hereby hold as follows: 1. The instruction fee of TZS 3,000,000 is upheld as reasonable under the circumstances. 2. The transportation allowance of TZS 1,500,000 is reduced to TZS 1,000,000 to reflect documented and substantiated costs only. Accordingly, the reference partially succeeds to the extent of the reduction in transportation costs. The decision of the Taxing Officer is modified as set out above. Each party shall bear their own costs for this reference. COURT: Ruling delivered in Chambers this 18th day of October 2024 in the presence of Ms. Maria Mwanjwango, learned Advocate for the Applicant and Mr. Richard Mwalingo, learned Advocate for the Respondents. Page 9 of 9