AISHA RAJABU

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA DODOMA SUB REGISTRY AT DODOMA CIVIL REFERENCE NO. 01 OF 2023 (Arising from the ruling of Singida District Land and Housing Tribunal in Taxation Cause No. 134 Of 2022) AISHA RAJ ABU (Administratrix of the estate of the Late Hamisi Mumwi).......... ........ APPLICANT VERSUS JUMANNE NGTMBA........................................................................ 1CTRESPOND ALLY SALEHE.................................................................................. 2ndRESPOND ALFONSI P.MWACHA..................................................................... 3rdRESPOND MARKINA FRANCIS........................................................................ 4thRESPOND MADGDALENA SALIMU................................................................. 5thRESPOND OMARY JUMANNE.......................................................................... 6thRESPOND RULING Last order 27/9/2024 Judgment: 13/11/2024 MASABO, J.:- This is a taxation reference from a ruling delivered by the District Land and Housing Tribunal for Singida in Taxation Cause No. 134 of 2022. The application has been filed under Order 7(1) and (2) of the Advocates Remuneration Order, GN. 263 of 2015. It was filed by way of a chamber summons supported by an affidavit of Mwajuma Hamisi Mumwi (as an administratrix of the late Hamis Mumwi) who was the respondent to the impugned taxation cause. As the application was still pending she demised and the current applicant, Aisha Rajabu, was appointed as the. new administratrix of the estate hence the substitution. Page 1 of 6 The background of the application as discerned from the record is that, the dispute between the parties landed in the tribunal in 2020 when Mwajuma Hamisi Mumwi, in her capacity as administratrix of the estate of the late Hamis Mumwi instituted Land Application No. 14 of 2020 before the District Land and Housing Tribunal for Singida suing the respondents herein. On 20/7/2022 the application was withdrawn with costs. Thereafter, the respondents successfully instituted Taxation Cause No. 134 of 2022 whose ruling is now sought to be reversed. The applicant's grievance as discerned from the affidavit is excessive taxation. She alleges that she was excessively taxed and she is praying the court to revisit the taxed amount. The respondents contested the application by filing a joint counter-affidavit affirmed by their counsel, Ms. Zahara Mussa Chima. During the viva voce hearing, the applicant was represented by Mr. David Rutayuga, learned advocate whereas the respondents were represented by Ms. Zahra Chima, learned advocate as well. I commend both counsels for their submissions. While composing the ruling, I observed that the order for withdrawal with costs was missing from the record of Land Application No. 14 of 2020. Hence, I invited the parties to address the court on whether the said; order exists/existed and if not, the competence of the present application and Taxation Cause No. 134 of 2022. Ms. Chima had the first audience. She conceded that she too has perused the record and observed that the order for withdrawal of the application with costs was not there. That, as per the record, the last appearance by the Page 2 of 6 parties was on 20/7/2022 and on that date, the application was scheduled for hearing on 5/8/2022. Prompted if she had ever seen the order she submitted that she had never seen it as when filing the bill for costs they were not supplied with a copy of the order by the trial chairman. She submitted further that, she recalls that, when the matter was still at the trial tribunal, she once perused the record and the said order was there. Moreover, she recalls that she was present in court on the date when the order was issued. In view of this, she invited the court to find that the record is incomplete as she recalls very well that 20/7/2022 which appears in the record as their last of appearance before the tribunal, was not the last date of their appearance. They appeared before the tribunal on 5/8/2022, 18/8/2022,19/9/2022 and their last appearance was on 30/9/2022, the date when the application was withdrawn with costs but the proceedings .for all these dates are missing from the record. She concluded that, although the said order is absent it is in the interest of justice that the court find the instant application competent and proceed to determine it on merits. Mr. Rutayuga was opposed. He submitted that the applicant was never supplied with the order for withdrawal of the application with costs ;and it was not appended to the application for the bill for costs although he recalls that Land Application No. 14 of 2022 was withdrawn with costs with leave to refile. I On the competence of the present application, he submitted and argued that, the absence of the order is not a little matter. It has rendered the application devoid of legs to stand on hence incompetent. He prayed that it be struck out and in fortification, he cited the decision of the Court of Appeal Page 3 of 6 in Mashishanga Salum Mashishanga vs CRDB Bank Pic & Others (Civil Appeal No.335 of 2019) [2021] TZCA 59 TanzLII as cited by this court in National Bank of Commerce LTD vs Oscar Grayson Nzaa and Said N. Jackson, Misc. Land Application No. 26 of 2023, HC (unreported). He argued that in Mashishanga Salum Mashishanga vs CRB Bank PLC and 2 others (supra) the Court of Appeal approved the decision in Gillanis Bakery vs F.J. Auntnr 1954 (21 EA 23) where it was held that, a judgment delivered not in accordance with law is tantamount to no judgment capable of being appealed against. He also cited the decision of this court in Ally Simba and Others vs Abdallah A. Matambo and Others (Civil Reference 2 of 2021) [2023] TZHC 16920 TanzLII whereby the court found the application incompetent because, the judgment had awarded costs but the decree had not. He concluded that since, in the present case the order for withdrawal with costs is missing from the record the reference cannot be sustained and it should be struck out for incompetence or in the alternative, the case file be remitted to the trial tribunal for rectification of the record. That is all. Rejoining, Ms. Chima prayed that the application should not be struck out but it should be remitted back to the trial tribunal for rectification of the record. I have considered the submissions by the parties. Two issues need I determination. First, whether the order for dismissal with costs from which the Taxation Cause No. 134 of 2022 and the instant application emanates does exist and if not, whether the present application is competent. Page 4 of 6 The first issue is straightforward and will not detain me. As stated above, while reading the typed and handwritten proceedings of Land Application No. 14 of 2020, it was observed that the order for withdrawal with costs is missing. The proceedings show that the parties last appeared before the trial tribunal on 22/7/2022 and on that day, the application was set for hearing on 18/8/2022. Thereafter, it is unknown whether they appeared again and whether the applicant applied for a withdrawal of the case and the same was granted with costs. As this observation coincides with the common submission by the parties, the first issue is answered affirmatively. Regarding the second issue, there also appears to be a consensus between the parties that the absence of the said order cannot be belittled as it directly impugns the competence of the present reference application and the taxation cause from which it emanates as both are meant to give effect to the court. Thus, unless there is an order granting costs to a party, there can neither be a taxation cause nor a reference thereto. Since there wasinone, it is crystal clear that Taxation Cause No. 134 of 2022 was incompetent and the ruling and drawn order thereto are a nullity for being predicated on a । non-existent order. Accordingly, they are quashed and set aside. * As both parties are in agreement that the application was withdraw^ with costs, they are at liberty to move the trial tribunal for necessary/appropriate remedies. Page 5 of 6 As for the costs, since the point on which the present application has been disposed of was raised suo motto by this court, each of the parties shall bear its respective costs. Order accordingly. DATED and DELIVERED at Dodoma this 13th day of November 2024. J. L. MASABO JUDGE Page 6 of 6