20050901 TZCA Dar es Salaam

IN THE COURT OF A?PEAl Of TANZANIA AT DAR ES SALAAM CO!i~SOLIDATIED TAXATION REFERIENCES NO. 2.7 /.>.ND 28 OF 2004 1. AHMED MA.BROUK 2. [llAJAMA HASSANAlI KANJI .................................... fJ?PU'.CfJ'~TS VERSUS MRS. RAFIK! HAWA MOHAMED SIOIKI ...................... RESPONDENT REFERENCE from the Ruling of the Taxing Officer of the Court of Appeal of Tanzanrra At Dar es Salaam) (Rumanyika, DR-CA) dated the 24th day of December, 2004 in Civil Appeal No. 80 of 1998 RULING MUNUO, J.A.: This is a reference against the decision of Rumanyika, DR-CA, Taxing Officer in Civil Appeal No. 80 of 1998 in which he taxed the decree holder's bill of costs at Sh. 5,033,300/- out of the claimed bill of costs of Sh. 11,033,300/-. In the notice of reference, Mr. Mbamba, learned advocate for the applicant, stated: Our client, Ahmed Mabrouk (1 st Respondent) had instructed us to make a taxation reference to a single judge of the Cou;t or Appeal on the following ground namely; 2 1. The honourable taxing officer erred in law in proceeding to tax bill of costs which was lodged and pursued by the appel!ant. in contravention of the Provisions of Rules of the Third Schedule to the Tanzania Court of Appeal Rules, 1979 .. In his submission, counsel for the applicant argued that the taxation bill before the learned taxing officer was incompetent because it was time barred. He contended that contrary to the provisions of item 2 (1) to the Third Schedule of the Court of Appeal Rules, the bill of costs was not served on the applicant within seven days in that the said bill was filed on the 21.2.2003 and served on the applicant on the 30.6.2003 instead of being served on the applicant within seven days. The learned taxing officer should have rejected the bill of costs, counsel for the applicant maintained. Mr. Mfalila conceded that the bill of costs was served on the other party four months after it was instituted but he refuted that it was incompetent. 3 Item 2 of the Third Schedule to the Court of Appeal Rules provides inter alia: 2 (1) Where costs are to be taxed the advocate for the party to whom costs were awarded shall lodge his bill with the taxing officer and shall, before or within seven days after lodging it, serve a copy of it on the advocate for the party liable to pay it. (2) A bill of costs shall be lodged as soon as practicable after the making of the order for costs and not later than twenty-one days after a request in writing therefore by the party liable, or such further time as the Registrar may allow. The bill of costs was filed on the 21/2/2003 and service on the applicant's counsel was delayed for four months. Did the delay occasion injustice to the applicant. In my view, the delay to serve the bill of costs on the party liable to pay it, was a curable irregularity because the said delay did not dissolve the liability to pay the ordered costs. Nor was the bill of costs time barred because under the above item 2 (2) of the Third Schedule to the Court Rules, the party liable to pay the costs had to request the bill of costs in writing. There is 4 " no copy of such request ln writing on record to enable the court to know from which date the 21 days started running. Under the circumstances the application '""": r) ~it- l l I..._~ l \.. t I accordingly dismiss the application with costs. DATED at DAR ES SALAAM this 1st day of September, 2005, E.N.MUNUO JUSTICE Of APPEAL I certify that this is a true copy of the original. (S.~URA) SEf\nIOR DEPUTY REGISTR/\R