2 Final Ruling WENDE HAWANGA

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM CIVIL REFERENCE No. 32578 OF 2024 WENDE HAWANGA..........................................................APPLICANT VS MOHAMED LIKAMBALE...........................................1st RESPONDENT MOHAMED LIKAMBALE (As the legal Administrator of the estate of ABDALLAH LIKAMBALE) ............................................2nd RESPONDENT VIRGIL AKWILINI SWAI........................................3rd RESPONDENT RULING Date of last Order: 25/03/2025 Date of Ruling: 02/04/2025 LALTAIKA, J. The applicant herein WENDE HAWANGA filed this application against the taxation decision of the Taxing Master. The application is premised on the alleged illegality and improper assessment of the taxed amount. The application was heard by written submissions with Messrs. R. David and G.S. Ukwonga appearing for the applicant and respondents, respectively. 1 I will start with a summary of their submission followed by my analysis of the law and conclude with the verdict. Mr. David, Counsel for the Applicant, stated that the matter before the court was an application for reference filed under Order 7(1)(2) of the Advocates Remuneration Order, 2015. He explained that the application was supported by an affidavit sworn by Wende Hawanga, the applicant, which formed part of his submission in chief. He indicated that, in essence, the applicant was seeking an order quashing the decision and orders of the Taxing Master, Hon. M. P. Mrio, dated 6th December 2024, in Taxation Cause No. 000024497 of 2024. Before proceeding with his submission, he briefly outlined the historical background of the matter. According to him, the applicant and the respondents had been involved in a land ownership dispute over Plot No. 494, Block "D," located in Tegeta, Kinondoni District, Dar es Salaam. He stated that the applicant had filed Land Application No. 441 of 2018 before the Kinondoni District Land and Housing Tribunal, where she had emerged victorious and had been declared the rightful owner of the disputed plot. 2 He further recounted that the respondents, being aggrieved by the tribunal’s decision, had appealed to the High Court through Land Appeal No. 403 of 2023. He stated that the appeal had been heard and determined on 29th March 2024 by Hon. T. N. Mwenegoha, Judge, who had reversed the decision in favor of the respondents. Additionally, he noted that the respondents had been awarded costs. Mr. David explained that, pursuant to the order on costs, the respondents, through the services of Advocate G. S. Ukonga, had filed a bill of costs numbered 000024497/2024, claiming a total sum of TZS 42,060,000. He pointed out that the Taxing Master had directed the parties to argue the application by way of written submissions, and, ultimately, the respondents had been awarded TZS 10,660,000. However, he contended that the applicant considered the awarded amount to be excessive, punitive, and unjust. He acknowledged the provisions of Order 12(1) of the Advocates Remuneration Order, 2015, which granted the Taxing Master discretion to allow costs, charges, and expenses as authorized in the Order or as necessary and proper for the attainment of justice. 3 He then raised two key questions for determination: whether the respondents' advocate had any justification for filing a taxation bill of TZS 42,060,000 for prosecuting an appeal originating from the District Land and Housing Tribunal and whether the Taxing Master had properly exercised her judicial discretion. He referred to the guiding principles set out by the Court of Appeal of East Africa in Premchand Rainghand Ltd and Another v. Quarry Services of East Africa Ltd and Others (No.3) [1972] 1 E.A. 162, which included the principle that costs should not be so high as to restrict access to justice only to the wealthy; that a successful litigant should be fairly reimbursed for reasonable costs; that advocate remuneration should attract competent individuals to the profession; and that consistency in cost awards should be maintained to ensure predictability for litigants. He asserted that the Taxing Master had failed to adhere to these principles, leading to an erroneous determination of the bill of costs. He argued that Land Appeal No. 441/2018 had been disposed of by way of written submissions and had not been a complex matter. He maintained that awarding TZS 10,000,000 as instruction fees was excessive. 4 Citing Order 41 of the Advocates Remuneration Order, 2015, he pointed out that costs incurred in contentious proceedings were to be taxed according to the rules prescribed in the tenth, eleventh, and twelfth schedules of the Order. He argued that the tenth schedule related to probate and administration and was irrelevant to land appeals, while the twelfth schedule governed bankruptcy proceedings. He contended that the Taxing Master should have considered items 1 and 3 of the eleventh schedule, which governed costs of proceedings in the High Court, subordinate courts, and tribunals. Based on these considerations, he asserted that the instruction fee should not have exceeded TZS 2,500,000, adding that attendance costs at the rate of TZS 30,000 per day for 12 days would amount to TZS 360,000, while disbursements would total TZS 60,000. Consequently, he submitted that the total amount to be awarded to the respondents ought to be TZS 2,920,000. Mr. Ukwonga, Counsel for the Respondents, responded by stating that the respondents had thoroughly reviewed the applicant’s 5 reference application, the affidavit in support, and the submission. He proceeded to address the issues raised therein. He pointed out that the applicant had served them with the application on February 3, 2025, and that the matter had been set for mention on February 6, 2025. On that day, the court scheduled the application to proceed by way of written submissions, but this was done in the respondents' absence and before they had an opportunity to file a counter-affidavit. To ensure their participation in the proceedings, he explained that they had filed a notice of objection, which had been served on the applicant’s counsel. Their objections were brief but centered on points of law. Specifically, they contended that the application had been served outside the seven-day period prescribed under Order 7(3) of the Advocates Remuneration Order, 2015, which mandated service within seven clear days of filing. He emphasized that the application had been filed on December 27, 2024, but was only served on February 3, 2025, well beyond the prescribed period. He underscored that the provision used the term “shall,” indicating a mandatory requirement, and the applicant had not sought an extension of 6 time under Order 8(1) of the same Order. Consequently, he argued that the application was void due to late service, yet the applicant’s counsel was seeking to expedite its hearing despite the violation of procedural rules. Mr. Ukwonga further submitted that the respondents had not had sufficient time to file a counter-affidavit because the applicant had rushed the matter to evade the repercussions of non-compliance with service requirements. In his view, since service had been either nonexistent or invalid, the applicant’s submissions should likewise be declared void. Additionally, he raised another point of law, contending that the affidavit in support of the application was defective. He asserted that the six paragraphs in the affidavit were merely a narrative of the events that had taken place in the High Court. He noted that the claim of illegality had been only briefly mentioned and not substantiated. Addressing the taxation rules, Mr. Ukwonga emphasized that the Advocates Remuneration Order, 2015, provided clear guidance. He referred to Order 12(1), which stipulated that the Taxing Officer might allow such costs, charges, and expenses as authorized under the Order or as deemed 7 necessary for the attainment of justice. He pointed out that the provision used the term “may,” which was not mandatory. Moreover, he highlighted that the provision allowed discretion to consider costs that appeared necessary or proper for justice. He further argued that Order 12(1) vested discretionary power in the Taxing Master. Citing the ruling, he noted that on page 2, the Taxing Master had expressly applied the 9th Schedule of the Order. He contended that the Taxing Master had properly exercised discretion and had left no room for the alleged illegality claimed by the applicant. In response to the applicant’s contention that the Taxing Master had not followed any principles in determining the bill of costs, he argued that such a claim was unfounded. He maintained that the Taxing Master had explicitly relied on principles outlined in Order 9. Any issues concerning the 11th Schedule or Order 41, he contended, should have been emphasized during the hearing rather than raised at this stage. In conclusion, Mr. Ukwonga maintained that the Taxing Master had correctly executed her duties, had been transparent in her ruling, and had taxed the bill in the interest of justice. 8 Mr. David, in his rejoinder submission, noted that the respondents' counsel had argued preliminary points of law without seeking leave of the court. He pointed out that the two preliminary objections had been filed by a notice dated February 7, 2025, and had been served on the applicant on February 18, 2025. He clarified that his rejoinder addressed the substance of the application for reference, following the submission in chief dated February 18, 2025. While acknowledging that the reference application had been filed on December 27, 2024, as correctly stated by the respondents' counsel, he explained that during that period, the High Court had been on its annual vacation. He further stated that the summons had been prepared by the court on January 16, 2025, after being signed by the Deputy Registrar. However, since the advocate for the respondents, to whom service was directed, had closed his office, service had only been effected on February 3, 2025, as indicated in the summons. With regard to Order 8(1) of the Advocates Remuneration Order, 2015, Mr. David submitted that the provision solely related to the High Court’s power to extend the time for filing a reference when a party was aggrieved 9 by a Taxing Officer’s decision. He further observed that Order 8(2) outlined the procedural steps for filing an extension of time to lodge a reference. Responding to the respondents’ argument concerning illegality, he contended that the respondents’ counsel had argued that illegality had not been supported in the affidavit. However, he maintained that an affidavit contained only facts and not evidence, as provided under Order XIX Rule 3(1) of the Civil Procedure Code, Cap 33 R.E. 2019. He cited the provision, which required that an affidavit be confined to facts within the deponent’s personal knowledge, except in interlocutory applications where statements of belief might be admitted. Furthermore, Mr. David pointed out that the respondents had admitted to being duly served with the reference application and had proceeded to file a reply. He argued that the respondents’ counsel had failed to demonstrate how he had been prejudiced merely by being served late with the application. He also noted that the respondents’ counsel had not indicated which relevant provision of the Advocates Remuneration Order had been considered in awarding them TZS 10,660,000/= by the Taxing Master. 10 He asserted that had the Taxing Master considered the case of Premchand Rainghand Ltd and Another v. Quarry Services of East Africa Ltd and Others (No. 3) [1972] 1 E.A. 162, she would not have reached such an erroneous decision. In conclusion, he urged the court to accept the applicant’s reference application and to reduce the quantum based on the current law in force. I have dispassionately considered the rival submissions and thoroughly examined the referenced documents. The following issues require my determination: 1. Whether the respondents' preliminary objections are properly before this court. 2. Whether the application is incompetent for non-compliance with the time requirement under Order 7(3) of the Advocates Remuneration Order, 2015. 3. Whether the Taxing Master committed an error in assessing the taxed amount. On the first issue, I adjourned delivery of this Ruling at least twice because I wanted to hear from Mr. Ukwonga on what exactly transpired that 11 made him think his fellow Counsel had unfairly fast-tracked the hearing of the matter despite being aware of the PO. Unfortunately, Mr. Ukwonga never entered appearance. I therefore refrain from discussing this first issue further. I will go straight to the competence of the application whether or not there was a PO. Such competence, it turns out brings me to the second issue. It is undisputed that the reference application was filed on December 27, 2024, but was served on the respondents on February 3, 2025. The respondents argued that this period exceeded the seven-day limit under Order 7(3) and that no application for extension of time had been sought under Order 8(1). The applicant, on the other hand, explained that the delay was due to the High Court’s annual vacation and that the court process server had only been able to effect service on February 3, 2025. The respondents failed to demonstrate any prejudice suffered due to the delay. I take judicial notice that procedural rules should not be applied rigidly to defeat substantive justice. The delay in service was occasioned by administrative constraints rather than any deliberate omission by the 12 applicant. In light of the overriding objective principle, which requires courts to deal with cases justly, fairly, and expeditiously, I find that the delay in service does not render the application incompetent. On the 3rd issue, the applicant challenged the Taxing Master’s award of TZS 10,660,000/=, arguing that the decision was erroneous and did not take into account relevant legal principles. The applicant relied on Premchand Rainghand Ltd and Another v. Quarry Services of East Africa Ltd and Others (Supra) [1972] to support the argument that taxation must be fair and reasonable. The respondents contended that the Taxing Master had properly exercised her discretion under Order 12(1) of the Advocates Remuneration Order, 2015, which allows the Taxing Officer to determine costs based on statutory rates or as necessary for the attainment of justice. They emphasized that the provision uses the word "may," indicating discretion. The court agrees that taxation matters involve an element of judicial discretion. However, such discretion must be exercised judicially, based on established principles. The case of Premchand Rainghand Ltd (supra) outlines three fundamental principles in taxation matters: 13 1. That costs should not be excessive. 2. That there should be consistency in taxation decisions. 3. That taxation should reflect the nature and complexity of the matter. The respondents' counsel did not sufficiently demonstrate how the awarded amount was determined in accordance with these principles. Additionally, the Taxing Master's ruling, as cited, merely applied the 9th Schedule without an explanation of how the quantum was justified. For these reasons, this court finds that the assessment of costs requires reconsideration. The taxed amount of TZS 10,660,000/= is hereby set aside, and the matter is remitted back to the Taxing Master for fresh taxation in accordance with the principles outlined in Premchand Rainghand Ltd (supra). It is so ordered. E.I. LALTAIKA JUDGE 02.04.2025 Court: Ruling delivered in Court Chambers this 2nd day of April 2025 at 14:30 HRS in the absence of parties and/or their Counsel. 14