ACCESS TO JUSTICE IN TANZANIA

Saturday, October 1, 2016

SELECTED TOPICS IN CIVIL PROCEDURE
TOPIC 4. TAXATION OF COSTS IN SUBORDINATE COURTS AND
TRIBUNALS

N, B) at the end of the course students are expected to be able to;

d)         Draft and file applications for taxation of costs; 

a)                  Meaning of:-
Taxation: the process of taxing or imposing a tax
Msoffe, J.H. (2009) ‘A Seminar on Principles and Practices of Taxation of Costs,
17th-18th September 2009’, A Paper presented to Judiciaries of EAC Member
States, A paper presented at Arusha (unpublished), p.1.

Costs
Black’s Law Dictionary (8thEd) p. 349- amount paid or charged for something;
price or expenditure.
Arbogast Fundi  v. Masud Zaid (1980) T.L.R. 125 at p.127.

Wasted costs

Taxing master
r. 3 GN. 515 of 1991, Registrar, District Registrar or Deputy Registrar of the High
Court or such officer of the court as the Chief Justice may appoint

b)                  Purpose of taxation

c)                  When does the taxation take place?

d)                 Who should or shouldn’t pay costs is a matter for the court to say and
not the taxing master.
-Dr. Masumbuko R.M. Lamwai v. Venance Francis Ngula & the Att.General, Civil
Appeal No. 56/1997, CAT (unreported).

e) Types of costs
     Party to party
    Advocate client cost
    Costs as a sanction e.g. wasted costs

e)                  Rules applicable
-Costs are discretionary
s.30 (1) Civil Procedure Code, Cap 33 R.E. 2002
r.11(1) GN. 515/1991
Sarkhar’s Law of Civil Procedure (8thEd), p.

f)                   Proper Taxing Master

-the court where the case terminates
                        Maximillian Rwabulala  v.  Emilian Kalugala & Another [1987]
T.L.R. 2
                                               
g)                  Limitation Period
-60 days from the date of delivering the judgement.
M/S Sopa Management Limited v. M/S Tanzania Revenue Authority, Civil Appeal
No 25 of 2010, CAT at Arusha, (unreported).

Tanzania Breweries Limited v. Augustino Suluo Ghobert T/A Sangoma Grocery,

Commercial Case No. 2/2006, HCT, Commercial Division, at DSM (unreported).

h) Contents of a Bill of Costs

     -Instruction fees
            George Mbuguzi and Another v. A.S. Maskini [1980] T.L.R. 53 at p.56
     
    -Factors considered in computing instruction fees:-

              -Amount of claim involved

        -time occupied in hearing
              -amount of research-modest, deep, shallow
     Haider Bin Mohamed v. Khadija Binti Ali Bin Salem (1956) 23 E.A.C.A. 313.
    
      -Disbursements
      Wambura Chacha v. Samson Chorwa (1973) L.R.T. no. 4

       Transport costs

             Communication/consultation expenses-teleconferencing, emails, Faxes

       Boots v. Mohawk Council of Akwasasne [2000] F.C. J. No. 312 (T.D.)
quicklaw        disbursements were allowed on the basis that the research was
necessary and the            costs were reasonable.
       Julius Ishengoma Francis Ndyanabo v. The Att.General, Civil Appeal No. 64
of          2001, CAT –
       Peter Mburu Echaria v. Priscilla Njeri Echaria [2007] eKLR 1.

       Service of documents

             Production of documents

             Court fees

             Perusal fees

           
i)Objection to taxation
   How?
r.5(2) GN. No. 515/1991, The Advocates’ Remuneration and Taxation of Costs
Rules, 1991. File a reference case by way of Chamber Application supported by an
affidavit-
Who is to handle the matter?
Taxing officers at the District/RM Level- the matter goes to the single judge.

            Limitation period 21days from the date of the ruling

            r. 5(2) GN. No. 515/1991.

           Approach of courts in reviewing decisions of Taxing Officers:-

            (i) where there is an error of principle.
Thomas James Arthur v. Nyeri Electricity [1961] EA 492, Gould, JA.
Ali Nyamgunda v. Emilian Kihwili (1967) HCD no. 177

(ii) Where the Taxing Master’s award is manifestly excessive or low so as to

appear unconscionable.
MGS International (T) Ltd v. Halais Pro- Chemie Industries Ltd, Commercial Case
no. 3/2003, HCT at DSM (unreported), Kalegeya,J.
M.C. Pardhan v. Ali Mohamed Osman (1968) HCD no. 502

(iii) ignoring the scale

Premchand Raichand & Another v. Quarry Services of E.A Ltd & others [1972]
E.A.162.
Steel Construction Petroleum Enginnering (EA) Limited v. Uganda Sugar
Factory [1970] E.A. 141.
Mutamwega Bhatt Mugywa v. Charles Muguta Kajege, Taxation Reference No. 5
of 2010, CAT (unreported), p.14.

\TOPIC 4. TAXATION OF COSTS IN SUBORDINATE COURTS AND

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PREMCHAND RAICHAND LTD AND ANOTHER VS QUARRY
SERVICES OF EAST AFRICA LTD AND OTHERS [1972] EA 162
In Premchand Raichand (supra) the erstwhile Court of Appeal for East Africa laid
down four guiding principles which have to be considered when determining the
quantum of an instruction fee. These are; first, that costs shall not be not allowed
to rise to such a level as to confine access to the courts to only the wealthy;
secondly, that the successful Iitigant ought to be fairly reimbursed for the costs he
reasonably incurred; thirdly, the general level of the remuneration of advocates
must be such as to attract worthy recruits to an honourable profession; and,
fourthly, that there must, so far as is practicable, be consistency in the awards
made, both to do justice between one person and another and so that a person
contemplating litigation can be advised by his advocates very approximately what,
for the kind of case contemplated, is likely to be his potential liability for costs
ALI NYAMGUNDA V. EMILIAN KIHWILI, (PC) CIV. APP. 68-D-66;
13/6/67
Hamlyn, J.
Plaintiff alleged that defendant had made her pregnant. Plaintiff was successful,
and submitted a Bill of Costs including an Instructions Fee of Tshs. 1500/- This
amount was reduced by the Taxing Master to Tshs. 200/- The case was brought
before the High Court on an Application for Reference. Held: “(A)n order will be
made on an Application for Reference upon Taxation only if the officer dealing
with the Bill has proceeded upon some wrong principle. The certificate of the
taxing officer will not be reviewed on a mere question of quantum save in
exceptional circumstances.” Citing in the Estate of Ogilvie; Ogilvie v. Massey
(1910) p. 243.

M. C. PARDHAN V. ALI MOHAMED OSMAN CIV. REF. 1-D-68, 22/12/68

Hamlyn, J.
A successful respondent had submitted a claim for an Instruction fee of Tshs.
7,500/- of which has been allowed by the Deputy Registrar as taxing officer. The
appellant/applicant maintained that such sum was excessive and that the taxing
officer should not have allowed more than Tshs. 200/- per diem. The applicant also
claimed that since more than one-sixth of total bill of costs had been disallowed,
respondent should not be entitled to the costs of taxation.
Held: (1) The Court noted that judges “will not interfere with the quantum allowed
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 having occurred or some
wrong principle having been adopted.” The Court stated that an instruction fee
includes both solicitor’s and barrister’s work and includes both attendances for
taking instruction as well as all other work necessary for preparing the case for
trial. In the present case, the taxing officer did not set forth any reasons for the
reduction, and did not use any “mathematical manipulation.”
The Court held that there was no “magic formula” and that “every case must be
adjudged on its own merits and on its particular circumstances.” The use of
mathematical per diem figure is of assistance, stated the court, but other matters
should be considered by the taxing officer, including the prolixity of the
preparation of a case and any peculiar complications in its presentation to court.
The subject matter involved may also have a bearing in some, but not all, cases.
Since the taxing officer did not set out in his ruling any statement of a wrong
principle, the Court declined to interfere with the discretion of the taxing officer.
(2) The Court also held that, under Rule 41 of Part 111 of the Advocates
Remuneration and Taxation of Costs Rules, the taxing officer had discretion, in
applying the “one-sixth rule” to ignore the instruction fee he must so indicate. But
the court held that the Rule does not require the taxing officer to record that he has
so exercised his discretion and the reasons for doing so, and if there is nothing to
show that the discretion was improperly exercised or the Rule not followed, the
taxing officer was entitled to ignore the “one-sixth rule”. Application dismissed
GEORGE MBUGUZI VS A.S MASKINI (1980) T.L.R 53 to taxed off a total of
Tshs 3,200,000/= as per items No. 2,3,14,18,22,25, and 31 of the bill costs for
perusal and consultations related to the suit. In the case George Mbuguzi ( supra)
the court held that;
" the instruction fees are intended to cover not merely the attendance of a solicitor
when takes his client's instructions. but all his work, other than that which is
elsewhere especially provided for. ,,”
 Taxation powers are discretional upon the taxing officer and the court shall
not interfere with such powers unless it is satisfied that the same was based
on a wrong GEORGE MBUGUZI V. A.S MASKINI [1980] T.L.R 53

 Instruction fees
George Mbuguzi and Another v. A.S. Maskini [1980] T.L.R. 53 at pp.56
-Factors considered in computing instruction fees
1. Amount of claim involved
2. Time occupied in hearing
3. Amount of research-modest, deep, shallow

ASSESSORS IN COURTS OF LAW

Assessors in the Primary Courts seem to be powerful because they have equal
votes with the magistrate. It was proposed that if one assessor cannot attend one
should suffice for the purpose of quorum.
In a civil case in UJIJI PRIMARY COURT OF MWANAIDI D/O RASHID
AND ALLY S/O NYEMBWE - The Primary Court Magistrate differed in opinion
with two sitting assessors and, entered a judgment contrary to Assessors views.
The judgment of the Primary Court Magistrate was later quashed by The High
Court, (Chipeta, J) on grounds that the trial Magistrate:
“… erred in overruling the unanimous opinions of the assessors…”, and further
that; “… the error was such a fundamental breach of statutory provisions…”
Honourable Judge concluded that “… the learned primary court magistrate,
therefore, had no authority to overrule the unanimous opinions of the two
 gentlemen assessors however perverse their opinions might have appeared to
him….”
In another situation, In Mkumbi Primary Court, Mbinga District, the case was
between Alexanda Killian and Linus Kinunda. In the course of the hearing, one of
the two assessors who previously sat with the magistrate was replaced by another
assessor, after the applicant had closed his case. The respondent, aggrieved by the
order, appealed. Kazimoto, J commented:
“…As a matter of practice assessors during trial should not be changed….”10 He
went further to say, “… the issue is whether there has been failure of justice.”

But before reaching his conclusion, Honourable Judge cited the case of
ARBOGAST FUNDI V. MASUDI ZAIDI (1980) TLR 125 … where the facts of
the case were exactly the same…” In the former case, the High Court,
(Lugakingira, J) decided that “…there was no failure of justice in the change of
assessors…”
Kazimoto, J however, disagreed with Lugakingira, J’s reasoning, when he said:
“… I have some difficulties in agreeing with that decision. Wandela in this case as
the other assessor in the case cited above never heard the evidence of any witness.
He did not know the case for both the parties in the case. After the summing up he
could not give any meaningful and independent opinion…. In my considered view
I find that the irregularity in this case has in fact occasioned a failure of justice and
I , with greatest respect, dissent from the decision in Arbogast Fundi v. Masudi
Zaidi ( supra)…”
It can be seen from the above cases that issues concerning presence of assessors in
primary courts and technicalities of their functions, among others, are matters still
to be considered. The Court of Appeal held concerning change of assessors thus11:
“…Neither the old Criminal Procedure Code nor the current Criminal Procedure
Act allows a new assessor to be recruited after the hearing of the case has started.”
“… We respectfully agree with both the learned Counsel that the proceedings
should be quashed. The appeal is thus allowed and the proceedings are accordingly
quashed. We order a new trial…”
The issue of assessors was said to be a source of delays and corruption for they are
lowly paid. Assessors could be used may be where there are issues of local
customs, or Islamic law. Otherwise they should not be there. Indeed, sometimes a
matter on Islamic religion is being dealt with but none of the assessors is Moslem.

THOMAS JAMES ARTHUR V. NYERI ELECTRICITY UNDERTAKING,

[1961] EA 492
1. It is trite that save in exceptional cases, a judge should not interfere with the
assessment of what the taxing officer considers to be a reasonable fee.
Questions which are solely of quantum of costs are matters with which the
taxing officer is particularly fitted to deal, and in which he has more
experience than the judge.

2. Reliance was placed on the case of Thomas James Arthur –v- Nyeri
Electricity Undertaking (1961) E.A. 492 for the proposition that where there
has been an error in principle the Court will interfere. In Counsel’s view
there was an error committed by the Taxing Officer in taxing the Advocates
bill of costs and this reference should be allowed.

Counsel for the Advocates opposed the reference and supported the decision
of the Taxing Officer. In his view there was no error in the Taxing Officer
considering instructions fees under schedule 1 of the Advocates
Remuneration Order. Counsel conceded that the conveyance was not
completed and that for this reason the applicable schedule was V and not 1.
This notwithstanding there was nothing wrong with the Taxing Officer
basing instructions fees on the purchase price of Kshs 9,500,000/=. In his
view an Advocate earns instructions fees the moment instructions are
received. Failure to pay Stamp Duty was irrelevant. Counsel also relied on
the same case cited by the client’s Counsel
i.e.: Thomas James Arthur –v- Nyeri Electricity Undertaking (supra) for the
proposition that questions of quantum are regarded as matters with which the
Taxing Officer was particularly fitted to deal and the Court will intervene
only 1in exceptional cases. In Counsel’s view this case is not exceptional
and the instruction fees awarded should not be disturbed. Counsel conceded
 and, in my view, correctly that there is no provision for one half increase on
instructions fees under schedules I and V. However, he argued that in the
event that the reference is allowed the advocates should be allowed to charge
interest at 9% per annum until payment in full.
I have now considered the application and the submissions made thereon. I
accept the clients’ submissions that the conveyance which was the interest of
the parties was not concluded. Schedule 1 of the Advocates Remuneration
Order was not applicable. And even if the said schedule applied there is no
provision for one half increase. In any event the same had not even been
sought by the Advocates.
It is now settled that where there is an error in principle the Court will
interfere with the decision of the Taxing Officer. This was the ratio
decidendi in the case of Thomas James Arthur –v- Nyeri Electricity
Undertaking (supra).

WAMBURA CHACHA V. SAMSON CHORWA (1973) L.R.T. NO. 4

Transport costs
Communication
consultation expenses-teleconferencing, emails, Faxes
It is also well settled that a Court cannot interfere with a Taxing Officer?s
decision unless the decision is based on an error of principle or the fee awarded
is so manifestly excessive as to justify an inference that it was based on an error
of principle. See Steel Construction Petroleum Engineering (EA) Limited v
Uganda Sugar Factory (1970) EA 141.

In Arthur vs Nyeri Electricity Undertaking (1961) E.A 497 the Court held as

follows:-

?where there has been an error in principle the court will interfere
but questions solely of quantum are regarded as matters with
which the taxing officers are particularly fitted to deal and the
court will interfere only in exceptional case.?