alex emanuel malya vs kimandolu utu family savings credit society 2018 tzhc 2237 6 september 2018

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (ARUSHA DISRICT REGISTRY) AT ARUSHA MISCELLENEOUS LAND APPLICATION NO. 189 OF 2017 ALEX EMANUEL MALYA ..............................................APPLICANT VERSUS KIMANDOLU UTU FAMILY SAVINGS & CREDIT SOCIETY ............................ RESPONDENT (Arising from the decision o f the District Land and Housing Tribunal of Arusha in Bill of Costs No. 413 o f 2016 as per Hon. F. Mdachi -Taxing master) RULING MAIGE, J This is a reference to the decision of the District Land and Housing Tribunal for Arusha (the DLHT) arising from a Bill of Cost Proceedings. The application has been preferred under section 77 and Order XLI Rule 2 of the Civil Procedure Code Act. It is supported by the affidavit of ALEX EMANUEL MALYA, the applicant. Its maintainability was question by way of a notice of preliminary objection on account of being preferred under wrong provisions of Law. When the matter came for hearing, Mr. Alen Godian, learned advocate for the applicant conceded to the preliminary objection. He however invited the Court to strike the application without costs since he has conceded to the application and he had notified the counsel for the respondent to that i effect. Mr. Charles Esaya, the manager of the respondent represented it on the hearing. He did not agree that the application be struck out with costs. He called upon the Court to award costs since the respondent has spend money to instruct an advocate to prepare the defense to the application. I have duly considered the submissions. In the first place, I agree with both parties that this Court has not been properly moved in the instant application. What the applicant calls an application for reference emanates from a decision of the DLHT on bill of costs. The claim for bill of costs and the procedure for enforcing the same are set out in the provisions of the Advocate Remunerations Order G,N. No. 264 of 2015, made under section 49 (3) of the Advocates Act, Cap. 341 (R.E., 2002). Under order 7(1) of the regulations, a party aggrieved by a decision of a Taxing Officer may fault the decision to a judge of the High Court, by way of reference. The provisions of section 77 and order XLII of Civil Procedure Code have nothing to do with references arising from Bill of Costs proceedings. In the circumstance therefore, the preliminary objection is sustained. The application is hereby struck out for being incompetent. I have been asked not to award costs because the counsel for the applicant has conceded to the preliminary objection. I cannot agree with the counsel. The application at hand was filed way back in 2017. The applicant was duly represented. The notice of preliminary objection was filed in April 2017. Despite his appearance on 30th July 2018, the applicant did not indicate that he was going to concede to the preliminary objection. 2 Mr. Esaya has insisted on the right of the respondent as to costs. I do not see any reason why the respondent should be denied such right. In the final result, the application is struck out with costs. It is so ordered. (SGD) l.MAIGE S' JUDGE 06/ 09/2018 Date: 6/9/2018 Coram: I. Maige, J Applicant: For the Applicant: Mr. Alen Godwin, Advocate Respondent: For the Respondent: Mr. Charles Issaya C/C: Mariam. Court: Ruling delivered; applicati6iM£etated. (SGDJT.MAIGE JUDGE 06/ 09/2018 I hereby certify this to be a true copy of the original, J.F. NKWABI UTY REGISTRAR ARUSHA 3