augustino mkweji vs anaziata ngairo 2021 tzhc 9411 3 december 2021

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

IN THE DISTRICT REGISTRY OF MBEYA

AT MBEYA MISC. LAND APPLICATION NO. 54 OF 2021 (Originating from Bill of Costs Nos. 28 of 2019 and 37 of 2020 in the High Court of Tanzania, at Mbeya) AUGUSTINO MKWEJI............................................................ APPLICANT

VERSUS ANAZIATA NGAIRO..........................................................RESPONDENT

RULING Date of last Order: 20.10.2021 Date of Ruling: 03.12.2021 Ebrahim, J. The applicant AUGUSTINO MKWEJI instituted an instant application seeking for the order of the order of this court to grant an extension of time to file a reference to challenge the decisions in Bill of Costs No. 28 of 2019 and Bill of Costs No. 37 of 2020. The application was made under Order 8(1) and (2) of the Advocates Remuneration Order of 2015, G.N. No. 264 of 2015. It was supported by an affidavit sworn by Mr. Justinian Mushokorwa, learned advocate for the applicant. The respondent objected the Page 1 of 9 application by filing a counter affidavit sworn by Mr. Salvatory Twamalenke, learned advocate for the respondent. Brief facts of the case are that; the applicant herein was a decree holder in Land Appeal No. 21 of 2019 where the respondent, ANAZIATA NGAIRO was a judgment debtor. Mr. Mushokorwa, counsel for the applicant filed a bill of costs against the respondent before the Taxing Master (Hon. N.W. Mwakatobe) vide Bill of Costs No. 28 of 2019. Following a preliminary objection raised by the respondent’s counsel, the said bill of costs was struck out with costs for being incompetent (i.e for being filled without attaching a copy of judgment and decree). The ruling was delivered on 31/8/2020. Upon the striking out order, the respondent’s counsel filed a bill of costs before Taxing Master (Hon.

P.R. Kahyoza) vide Bill of Costs No. 37 of 2020 which its decision was delivered on 22/2/2021. Discontented by both decisions i.e in Bill of Costs Nos. 28 of 2019 and 37 of 2020; and upon found himself late to file reference to challenge the same, he filed the instant application. Page 2 of 9 The application was heard by way of written submission. The applicant was represented by Advocate Mushokorwa, while the respondent was represented by advocate Twamalenke. Having stated the brief account of the facts leading to this application, I noted that Mr. Mushokorwa has made an omnibus application. I am saying so because the decisions intended to be challenged emanates from two separate and different decisions i.e, the Bill of Costs No.28 of 2019 before Honourable N.W. Mwakatobe, and Bill of Costs No.37 of 2020 before Honourable P.R. Kahyoza. In the former application, the applicant herein was a decree holder/claimant and the respondent was a judgment debtor/respondent. In the latter, the respondent herein was the claimant while the applicant was the respondent. Like it is not enough the decision intended to be challenged in the former case is the order striking out of the bill of costs, whereas in the latter case the applicant intends to challenge the amount taxed. Another dissimilarity is that the former was decided on 31/8/2020 while the latter was decided on 22/2/2021. In those

two cases, the nature and reasons for the delay cannot be the same. Having noticed as above, I would have invited counsel for the Page 3 of 9 parties to address me on the remedy of such abnormality. However, under the prevalence of the principles of overriding objective which requires courts to deal with cases justly, speedily and have regard to substantive justice; I apply my discretionary power to reject the application concerning Bill of Cost No.37 of 2020. I will thus, deal and determine the application relating to Bill of Costs No.28 of 2019 only. If counsel for the applicant still wishes, he may make a separate application regarding Bill of Costs No.37 of 2020. Now, I will consider the reasons for delay pertaining to bill of costs No.28 of 2019 as follows: Submitting in support of the application, Mr. Mushokorwa adopted the content of his affidavit. He also submitted that the delay was caused by waiting to be supplied with the copies of the impugned decision. He contended that the he presented a letter requesting for the copies of ruling and drawn order but were not supplied to him timely. The letter showing that he applied for the copies on the same date of the ruling was attached to the affidavit as annexture B. According to him, in view of section 19(2) of the Law of Limitation Act, Cap. 89 R.E 2019 and the case of Page 4 of 9 Registered Trustees of Marian Faith

Healing Centre @ Wanamaombi v. The Registered Trustees of Catholic Church Sumbawanga Branch, Civil Appeal No. 64 of 2006 CAT at Dar es salaam (unreported), the time spent in waiting for the copy of the decision is excluded in computing time limit of the action intended to be taken. Mr. Mushokorwa further contended that there were illegalities in the impugned decisions, he submitted that there was a serious point of law that the Taxing Master struck out the bill of costs for not being accompanied with the copy of the decision while he supplied him (Taxing Master) with the letter dated 23/10/2019 showing that the applicant requested for the copies but were not availed. According to Mr. Mushokorwa, the Taxing Master was supposed to consider that letter or refuse it by assigning reasons for such refusal. Additionally, he claimed that the striking out was wrongly made since there is no law which requires the bill of costs to be accompanied with the copy of the decision. Mr. Mushokorwa argued that the Taxing Master admitted that fact but continued to trike it out. According to him those were serious illegalities which Page 5 of 9 need to be Mr. Mushokorwa interfered with through reference, therefore, prayed for this court to grant the application with costs. In response, Mr. Twamalenke adopted the content of his counter affidavit and proceeded to submit that attaching a copy of

the decision in filing reference is not the requirement of law. That order 7 (1) and (2) of G.N. No. 264 only requires an applicant to institute a reference by way of chamber summons supported by an affidavit and no more. He continued to argue that counsel for the applicant did not account for each day of delay from when the bill of costs was truck out on 31/8/2020 to 4/7/2021 when this application was filed in court. He thus urged this court to dismiss the application with cost. In his rejoinder submission, counsel for the applicant reiterated his submission in chief. Having considered the submissions by the counsel for the parties, the major issue to be determine by this court is whether the applicant has demonstrated good cause for the delay to warrant the grant of this application. Verily, sufficient cause depends on deliberation of various factors, some of which revolve around the nature of actions taken by the applicant immediately before or Page 6 of 9 after becoming aware that the delay is imminent or might occur as it was observed in the case of Finca (T) Limited & Another v. Boniface Mwalukisa, Civil Application No. 589/12 of 2018 Court of Appeal of Tanzania at Iringa (unreported). The applicant's major reasons for the delay is the waiting for the supply of the copy of the ruling, and illegality of the decision. It is argued by Mr. Twamalenke that the attaching of the

ruling in filing a reference is not a requirement of the law, but on the other side he supports the decision of the Taxing Master which struck out the Bill of Cost for not being accompanied with the copy of the decision. I think, counsel for the respondent meant that attaching a copy of judgment in filling bill of cost is the requirement of law while it is not the case in filing a reference. However, no any provision of the law was cited to support his contention. On that regard, it is my concerted view that, the attachment of a copy of the impugned ruling is good practice since the court cannot make any decision on a reference without a copy of the impugned ruling. I am fortified by CAT decision in the case of Abbas Sherally and another v. Abdul Sultan Haji Mohamed Page 7 of 9 Fazalboy, CAT Civil Application No. 183 of 2005, at Dar es Salaam (unreported) where it was held that: “All the more reason in applications for revision for requiring the attachment of a copy of the decision, subject of revision in order for the Court to examine by reading the decision and satisfy itself as to its correctness, legality or propriety." Though in that case the matter involved was application for revision, the principle may apply in the instant matter. As Mr. Mushokorwa submitted, he requested for the copy on the same date when the ruling was delivered. Indeed, the record i.e annexture B to

the affidavit indicates so, but he did not state when the same was supplied to him for this court to consider the delay from when he was supplied to the time he filed this application. Failure to state that fact would have led this court to decide that the applicant has not demonstrated sufficient cause for the delay. However, there is a rivalry between counsel for the parties, one was complaining that the taxing master acted illegally by striking out the bill of costs for not being accompanied with the copy of the decree which however, he claimed to be not Page 8 of 9 his fault since he requested the same in vain; whereas on the other side he maintained that the Taxing Master was proper since it is the requirement of the law to attach the copy of decree for the taxing master to certify himself if the decree holder was awarded costs. He argued that the applicant would have waited until he secured it. In my view, that dispute forms a good reason for this court to extend time so that the same can be resolved on merit. Owing to the above findings, I hereby grant the application. The applicant shall file his reference within 21 days from the date hereof. Costs to be in the main course. Ordered accordingly.

JUDGE Mbeya 03.12.2021 Page 9 of 9 Date: 03.12.2021. Coram: P. D. Ntumo - PRM, Ag-DR. Applicant: Present For the Applicant: Mr. Salvatory Twamalenke, Advocate holding brief for Mr. Justinian Mushokolwa. Advocate. Respondent: Absent. For the Respondent: Mr. Salvatory Twamalenke, Advocate. B/C: Patrick Nundwe. Court: This ruling has been delivered this 3rd day of December 2021, in open chambers in the presence of the appellant and Mr. Salvatory Twamalenke Advocate for the appellant and holding brief for Mr. Justinian Mushokorwa, Advocate for the respondent, and in hereby certified as a true copy of the original. P.D. Ntumo - PRM Ag- Deputy Registrar 03/12/2021