THE CONCEPT OF BILL OF COSTS IN CIVIL CASES.

Under the normal circumstances when the civil case is determined to it’s finality, the words “With costs” or “Costs to follow the event” are normally seen at the end of the judgement or ruling.

The winner of the case is entitled to costs of prosecuting the case. These are costs incurred in prosecuting the case which includes the instruction Fee to defend or prosecute the case, stationaries, fees for filling the pleadings and transportation costs to attend hearings, etc. However the Court may decide not to award the Costs to the winner and the Court must act judiciously by stating the reasons, which are as follows:-

1. Misconduct of the Winner – If the winning party engaged in misconduct during the proceedings, such as misleading the court, unnecessary prolonging of the case, or other unethical behavior, the court may deny costs.

2. Public Interest Litigation – In cases involving constitutional or public interest litigation, the court may decide that each party should bear its own costs to avoid discouraging future public interest cases.

3. Partial Success – If the winning party only succeeds in part of their claims and the losing party also succeeds in some aspects, the court may order that each party bears its own costs.

4. Unnecessary Litigation – If the court finds that the case could have been avoided through reasonable settlement or alternative dispute resolution (ADR) but the winning party insisted on going to court, costs may not be awarded.

5. Poverty or Special Circumstances – In rare cases, if the losing party is indigent and ordering costs would cause extreme hardship, the court may decide that each party bears its own costs.

6. Statutory Provisions – Some specific laws may provide that costs should not be awarded in certain types of cases, such as labor disputes or family matters, depending on the circumstances.

7. Judicial Discretion – The court has discretion to deny costs if it deems it just and equitable to do so, based on the facts and conduct of the case.

8. If a civil case is raised suo motu (on the court’s own motion) in Tanzania, the general rule is that costs may not be awarded to any party, especially if the parties were not the ones who initiated the proceedings. However, the court still has discretion to decide on costs based on the circumstances. Here are key considerations.

Without reasons the winner may challenge such decisions. If a court in Tanzania fails to state reasons for not awarding costs to the winning party in a civil case, the remedy available is an appeal or review against the part of the judgment or decree that denies them costs without justification.

If an appeal is not an option, the aggrieved party can apply for revision under Section 79 of the Civil Procedure Code if there is an issue of jurisdictional error, procedural irregularity, or failure to exercise judicial discretion properly.


Legal Justification

Courts have discretion to award or deny costs under Section 30(1) of the Civil Procedure Code, but they are required to provide reasons if they depart from the general rule that “costs follow the event” (Bi Hawa Mohamed v Ally Sefu [1983] TLR 32).

Procedures to realize Costs.

First and foremost it is important to understand that the governing Law is Advocates Remuneration Order(ARO), and a person entitled to Cost must apply by the Document known as BILL OF COST made under Order IV and LV of ARO which stipulate the contents of the Document.

1. BILL OF COST.
   • This is the primary document listing all costs incurred during the case, including court fees, advocate’s fees, transport, and other disbursements.
     
     It should be itemized and categorized properly.
2. CERTIFICATE AS TO FOLIO
   • It is for ascertainment on the correctness of what is contained in the Bill of Costs. A Certificate as to Folios is a document which certifies the number of folios (pages) in pleadings, proceedings, or other court documents, which is important for taxation of costs. It is usually required when calculating costs related to document preparation, copying, or court record retrieval.

The Application has to be done within 60 days from the date the order was delivered. Then another document will be issued by the Court at this juncture which is the NOTICE FOR TAXATION.

It is a formal notice served to the other party, informing them of the taxation proceedings and the date set for hearing the bill before the taxing officer in other words it is a Summons to call the other party. This application for Costs is normally done orally but sometimes the Court may require written Submission.

Other documents which serve as Evidence in the Bill of Cost.

During the hearing of this Application evidence has to be adduced by the applicant to convince the Court on the claimed costs which evidence may include RECEIPTS FOR THE PAYMENTS, ENGAGEMENT AGREEMENT most want the EFD receipts that must be attached to the Bill of Costs. However there is a dialogue in this part where some say receipts are mandatory to all others except for the Legal fee, as they are clearly stipulated under order XIII of ARO. Over charging is not allowed and if it happens the extra amount won’t be awarded, the taxing master will only consider what is stipulated by the Law.

WHO IS A TAXING MASTER?

In Tanzania, the Taxing Master is the judicial officer responsible for assessing and determining the costs payable in a case where costs have been awarded. The Taxing Master ensures that the Bill of Costs is fair, reasonable, and in accordance with legal scales.

Who Serves as the Taxing Master?

The Taxing Master depends on the level of the court:

1. High Court & Court of Appeal
The Registrar or Deputy Registrar acts as the Taxing Master for cases before these courts.

2. District and Resident Magistrates’ Courts
The District Registrar, Deputy Registrar, or a Magistrate in charge acts as the Taxing Officer in taxation matters.

3. Tribunals (e.g., Land Tribunal, Labour Tribunal)
The Chairperson or a designated officer may handle taxation matters in specialized tribunals.

Roles of the Taxing Master

(a).Reviews and Assesses Costs – Examines the Bill of Costs to determine fair and reasonable expenses.

(b).Conducts Taxation Hearings – Listens to objections from parties regarding specific cost items.

(c).Adjusts the Bill of Costs – May reduce or allow specific costs based on legal principles.

(d).Issues a Certificate of Taxation – Confirms the final taxed amount payable by the losing party.


REMEDIES IF DISSATISFIED WITH THE TAXATION DECISION.

• If a person is aggrieved/unhappy by the order of the taxing master from the Residents Magistrate Court or District Court, he can apply for REFERENCE to the High Court by way of Chamber Summons supported with Affidavit. And if it was granted by the Registrar of the High Court apply for REFERENCE to the High Court. This is provided under Order VII of the ARO 2015.
• If a person is aggrieved/unhappy by the order of the taxing master from the Court of Appeal may Appeal to the Justice of Appeal as provided under Rule 124 and 125(1) of the Court of Appeal Rules.

IMPORTANT THINGS TO NOTE.

• The Application for Costs are heard by the Taxing master.
• If the part is not found the taxing master will do away with the notice of taxation and fix a date to continue with the Bill of Costs hearing.
• Even when the part is not represented can still get costs, all costs excluding the one used to prepare the Bill of Costs.

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