20010103 TZCA Dar es Salaam

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM CIVIL APPEAL NO. 55 OF 1997 BETWEEN ALCARDO SYLVESTER ILAGILA RAMADHANI JUMA KAP AYA ......................... APPELLANTS AND THE ATTORNEY GENERAL DR. JACOB ABRAHAM MSINA ....................... RESPONDENTS RULING Mwaikugile, Taxing Officer This Bill of Cost was set for taxation today. Before taxation of the same commenced Mr. Kihwelu learned Counsel for the Judgment Debtor raised two points of preliminary objection. First, that the Bill of Cost was incompetent because it contained items for taxation before Taxing Officer of the High Court as well as items for taxation by the Taxing Officer of the Court of Appeal. He submitted that such a Bill of Costs cannot proceed for hearing until after the same is split into two and appropriate sets of Bill of Costs are filed for taxation in the appropriate courts, that is to say one set to be taxed in the High Court and the other set in the Court of Appeal. Secondly, he submitted that the Bill of Cost cannot proceed to hearing as there is no Drawn Order as provided for under Rule 39 (2) (b) of the Court of Appeal Rules 1979, hence prayed that the Bill of Cost be struck out with costs. Mr. Kwikima, on the first preliminary point of objection, did in principle concede to it and was willing to effect the necessary amendments to the Bill of Costs. On the second point of preliminary objection, he submitted that the absence of a Drawn Order does not make the court incompetent to proceed with taxation of the Bill of Cost. He submitted that in the first place Rule 39 (2) (b) has nothing to do with order for costs and that the omission of a Drawn Order can be amended as provided for under Rule 39 (2) (c) of the Court of Appeal Rules. Mr. Kihwelu, submitted in reply that Rule 39 (2) (c) talks about a situation where there is a Drawn Order filed, but that, in this particular _case there is no Drawn Order and so the question of amending pleadings does not arise. Where one has filed a Bill of Cost without a Drawn Order is just like an empty shell not worth of taxing it, hence prayed that it be struck out with costs. Having heard the submissions of Mr. Kihwelu, learned counsel for the Judgmenent Debtor on the preliminary points of objection raised and having also heard the reply by Mr. Kwikima learned Counsel for the Decree Holder, to the submissions, I am inclined to uphold the first preliminary point of objection on ground that the learned counsel for the Decree Holder concedes. With regards to the second preliminary point of objection which relates to absence of Drawn Order, I am strongly of the view that the filing of a Drawn Order is not a discretionary exercise. It is a mandatory requirement which, has to be complied with before Taxation of the Bill of Cost has to proceed. I do not agree that Rule 39 (2) (c) of the Court of Appeal Rules, 1979 can come into play in a situation where there is no Drawn Order to effect amendments to the pleadings. As rightly pointed out by Mr. Kihwelu, that provisions is not applicable in the circumstance of this Bill of Cost. Since there is absence of a Drawn Order on record, Rule 39 (2) (c) cannot be a cure to the defect. I am persuaded to accept the submission by Mr. Kihwelu that a Bill of Cost which does not have a Drawn Order on record is like an empty shell not worth taxing it. The learned counsel for the Decree Holder has omitted an essential step for which I agree with the learned counsel for the Judgment Debtor that this Bill will have to be struck out. Having said so therefore, it is hereby directed that this Bill of Cost be split into two sets. Items for taxation before the High Court should be filed in that court for taxation by the Taxing Officer of that court. Items for taxation by the Taxing Officer of the Court of Appeal, should be filed in that court for taxation by the appropriate Taxing Officer. As there is no Drawn Order in this omnibus Bill of Cost, it is hereby ordered that appropriate Drawn Order be drafted and submitted to the other party for signature as provided for under Rule 39 (2) (b) of the Court of Appeal Rules, 1979. That said, this Bill of cost is struck out with costs and the learned counsel for the Decree Holder is ordered to comply with directions given hereinabove. It is so ordered. ' N. waikugile, SENIO DEPU Y REGISTRAR - C.A. 30/1/2001 Delivered in chamber in the presence of both learned counsels this 30th day of January, 2001. N. I • Mwaikugile, SENIOR DEPUTY REGISTRAR - C.A. 30/1/2001