20151116 TZHC Arusha

I IN THE HIGH COURT OF TANZANIA AT ARUSHA CIVIL REFERENCE NO. 4 OF/ 2015 (Originating from Arusha District Land and Housing Tribun~I of Arusha, Bill of Costs No. 33 of 2011) 1. ALFRED LEMETI 2. LONING'O LEMETI : 3. ISRAEL LEMETI 4. JOHN LEMETI 5. MESHILIEKI LEMETI ............... .............. APPLICANTS 6. PENIEL LONING'O; 7. SAIGURAN LEMETI 8. LOMATAN LEMETI Versus GODWIN LENGINA MASANGWA ................................ RESPONDENT Date of last Order: 26/10/2015 Date of Ruling: 16/11/2015 RULING MASSENGI, J The Applicants after being dissatisfied ~ith the decision of Taxing i ' I Master in Bill of Costs No. 33 of 2011 filed this application under the provisio'ns of section 5 (1) and 5 (2) of the Ad Vocates' Remuneration and'------- 1 Taxation of Costs Rules, 1991 G.N No. 515, applying for the following orders; 1 Words, 1408 (a) That the decision of the Taxing Officer in Bill of Costs No. 33 of 2011 before the District Land and Housin g Tribunal at Arusha 1 I th dated 11 June 2015 be set aside. (b) Costs to follow the event. I (c) Any other orders as the Honourable Court may deem just and II equitable to grant. I This application is supported by a joint affidavit of the Applicants. I With consent of both parties, this court ordered the hearing of this , I ·• ·application to be conducted by way of written suqmissions whereby the Applicants were represented by Mr. Lawena learried counsel while the i respondent was represented by Mr. Koisenge learned counsel. The I Applicants were ordered to file submissions in chief by 29/10/2015, the I respondent to file reply submission by 5/11/2015 and rejoinder if any to be filed by 10/11/2015. Both parties complied with the Jcheduled order. I Arguing the application, learned counsel for th e Applicants submitted 1 that the District Land and Housing Tribunal Bill of co:sts No. 33 of 2011 was . based on Land Application ·No. 49 of 2007. In thel said Bill of Costs, the I respondent prayed for the paymerit of Tshs. 8,oop,ooo/= as instruction · i fees to deal with the matter. That amount was taxed as presented simply : because the same was not challenged. He cont~nded that the Taxing·, I Master erred in taxing the said amount as presented without taking into : I consideration the nature of the case and referred tltlis court to the case of SIANGA VS. ELIAS [1972] H.C.D 66 and the tase of PREMCHAND : - - I RAICHAND. He further submitted that the amoun~ claimed as instruction · ' fees was punitive and an abuse of ;the powers of t~e tribunal and referred. I 2 ! Words, 1408 I to the case of REGISTERED TRUSTEES OF I THE CASHEWNUT . • I I INDUSTRY DEVELOPMENT FU~D VS. CASHEWNUT BOARD OF I TANZANIA (2011) 1 E.A 407. ~e therefore contended that, had the I Taxing Officer put into consideration the nature of !the matter she would I I not have taxed the bill at Tshs. 8,000,000/=. As suth I prayed this court to set aside order of the Taxing Maste;r dated 11 th Jun~, 2015 as the same is an abuse of the court process. 1 I In reply submission, the resbondent's coun~el started by drawing I . attention to this court by way of P~eliminary Objection on the competence of this application; that this application is hopelessly time barred and the I same should be dismissed with co~ts. He argued that the ruling which is ' , I the subject of this application wa,s delivered on iJune 11 th , 2015 in the presence of all Applicants except the 5th and the 8th Applicant. The I f I th I Applicants filed this application on 4 August, 2015 which is 64 days later. It is his argument that, according to I rule 5 (1) and' 5 (2) of the Advocates' , I Remuneration and Taxation of Gosts Rules, 19Ql (G.N No. 515/1991) I limitation of any reference is cited as 21 days. He added that even if will be I assumed that there was exclusion :of the period which the Applicants spent I to get and obtain copy of the deci~ion, still the app:lication is time barred as I the Applicants were supplied witr the copy of decision of the Taxation • i . Officer on 22/ 07/2015 as evidenced by exchequer receipt hence the I application was required to be filid not later than !12'h of August, 2015. He therefore prayed this application be dismissed in terms of section 3 (1) of I the Law of Limitation Act, Cap. 89 R.E 2012 and the case of STEPHEN I r 3 Words, 1408 I I I MARUNDA VS. SHIRIKA LA USAFIRI DAR ES S~LAAM [1982] TLR i 258 and BENEDICTOR VS. LAMBERT [1971] HCD 242. , I Alternatively, he submitted that this applicatidn is devoid of merits ' . i and the same has been preferred without legal sense. He contended that I the amount awarded as instruction fees was reasonable and fair and that I the tribunal was of the opinion that as the Appli~ants' counsel did not I • dispute the said amount then the same was I charged as prayed; I surprisingly at this stage the Applicant together with their counsel is now I challenging the same. He further submitted that the case giving rise ~o the Bill of Costs No. I 3/2011 is Application No. 49/2007 which was instituted on March 1th, 2007 until August 26 th , 2010 when judgment was belivered, that is three I years and five months. He stated that the trial involved examination of nine, I Applicants, witnesses and eleven respondents and ;their witnesses. Hence the tribunal considered the length of the case, time spent to prepare I witnesses and as well preparations of the defen 'ce case. He therefore . 1 submitted that amount awarded was reasonable and fair which need not to be contested and supported his argument with the; case of HARDER BIN MOHAMED ELEMANDRY & OTHERS VS. KHADIJA BINTI ALLI I (1956) 23 EACA 313 and the case of UJAGAR S~NGH VS. THE MBEYA COOPERATIVE UNION (1968) HCD 173. Basing on that, he prayed this application be dismissed with costs. / I have considered the submission of both parties and gone through I the records of the tribunal. The respondent's cou~sel in the course of his submissions he raised a preliminary objection that the Applicants' I I 4 I Words, 1408 I {.)- ~ .. ' ! I I A - ·; I I I I application is time barred as the ruling of the Taxing IMaster which is the ! subject of this application was delivered on 11/6/20151, the certified copies I of the ruling was obtained on 22/7/2015 while this application was filed on I 14/8/2015 after lapse of 64 days contrary to rule 5 G2) of the Advocates' , I Remuneration and Taxation of Costs Rules (G.N No. ~15/1991). We are all aware that preliminary objection on time limitation: is a pertinent issue which can be raised at any stage of the : proceedings before ruling/judgment as such this court is obliged to dea,I with that issue first I before proceeding with determination of the application on merits. i Rule 5 (1) of the Advocates' Remuneration a.nd Taxation of Costs . I Rules (supra) provides the jurisdiction of this coyrt on objection to a , I decision of the Taxing Officer. Rule 5 (2) of the same rules, further I provides that; i "The objector shall proceed by way of Chamber 1 1 I application, supported by an affidavit: to be filed I I within 21 days after the issue of the certified copy . I of the officer's decision and to be serve[/ upon all other I parties who were entitled to appear on fUCh taxation.// (emphasis supplied) i As provided by the law above, the limitation perio8 to file an application 1 objecting the decision of Taxing Mpster starts to r~n from the date which I the certified copy of the said decision is issued. The records of the tribunal I show that the decision of Taxing Master was deliv'.ered on 11/6/2015 and . I t he certified copy of the said dedsion was issued1on 22/7/2015 the date when the Applicants were supplied with the ce~ified copy of the said I I s I Words, 1408 I I I I I I . ,- ,-, decision as evidenced by a copy of exchequer rJceipt No. 5799524. I ~ Computing from 22/7/2015, the daty when the Appl 'icants were supplied 1 with the certified copy of the decision of the Taxing !Master to 14/8/2015 I when this application was filed, it gives us 24 days. Atcording to rule 5 (2) . I , of the Advocates Remuneration Rule$ (supra), an application objecting the decision of Taxing Master must be filed within 21 dbys from the date of , I issuing the certified copy of the decision; , as such I c<Dncur I with submission of the respondent's counsel that this application wasl filed out of time and ' 1 without a leave of this court to do so: Basing on the above, I therefore sustain the I preliminary objection I raised by the respondent's counsel and accordingly dismiss this application . I with costs. I Order accordingly. I I (SGD) F.H. MASSENGI JUDGE 16/ll/2015 Ruling delivered in Court this 16th day of November~ 2015 in the presence of Applicants in person and resporidents in person'. Right of appeal fully·· I explained. I (SGD) I F.H. MASSENGI I JUDGE I _..7 ------,,___ 16/11/2015 I /of rA1v > Y<PerebY.~~ert:iify this to be a true c _. of the original!. ..::, i- -- . . l;,'.,f,... . I I 0 t- 'I,:• ·. i)~~ ·- ~ ~'; /:i~, PUTY REGISTRAR : ~ ~ ARUSHA I , I &J 11~ I ' -- 6 I ~ Words, 1408 I I I I