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2021 Tzhclandd 678 - 0
2021 Tzhclandd 678 - 0
LAND DIVISION
AT DAR ES SALAAM
(Originating from Bill of Costs No. 16/2015 (Hon. Kabate R, Taxing Master)
VERSUS
RULING
T.N. MWENEGOHA,J
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:
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;
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.
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:
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:
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.
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
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.
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
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.
EGOHA
JUDGE