19970422 TZCA Dar es Salaam

ti)<~ ;; .• >~~- ...... :-:, .i .. t· '· ' . f. ' IN THE COURI' OF APPEAL OF TANZANIA AT DAR ES SALAAM ---- .. ····-···· ... -·-·· ...._.......... CIVIL APPEAL NO. 36 OF 1990 BET.:fEEN AZIZ DAUDI AZIZ o•ocoo:>coooooooor,0000000000•• APPELLANT I AND 1. AMIN AHMED ALLY 2. SELEMANI WAGHARIBU •00000000 oc oooc en 0 0 0 0 0 RESPONDENTS RULING LUANDA TAXING OFFICER: ....... ~·-· .J ····-- - ··~·"···~ -~ .. •--~~- •··· Mr. El ...Maamry, learned Advocate for ·Amin Ahmed Ally and Selemani Wagharibu, the Respondents has filed yet another Bill of Costs totaling Sh. 506,000/~. I say so because the Bill of Costs which he had filed prior to, this one was dismissed by Mr~ Kalegeya ... · was) . SDR-CA (as he thenL on 29/3/1993. · · 'rhe reason for the dismissal was that the Bill of Costs was not properly before the Court as there was r• a mix up as who was the Appellant and who was the Respondento Mr. El-Haamry clients were the Respondents and not the Appellants as referred to in the Bill of Costs. The present Bill of Costs was filed on 14/11/1994 after more than a year after the dismissal. When Mr. El-Maamry started submitting, Mr. IDcongwa, learned Counsel for the Appellant objected firstly' by saying that the procedure adapted by Mr. El-Maamry was not proper. He went on to say that if Mr. El-Maamry was not satisfied by the decision of the Trucing I Master who dismissed the Bill of Costs, he should refer the matter to a judge of the Court of Appeal as provided under Rule 119 (1) of the Court of Appeal Rules, 1979 and not to file further Bill 0f Costs. Secondly, even if the filing was proper, Mr. Ukongwa submitted • o o o/2 2 that the Bill of Costs was b.me barred as the same ought to .be filed within twenty one days as provided under sub-Rule 2 (2) of the Taxation of Costs Rules - Third Schedule to the Court of Appeal Rules, 1979. He prayed that the Bill of Costs be struck out. In reply Mr. El-Maamry submitted that Mr. Ukongwa ought to have given a notice of objection so that he should not take the other party by surprise. He did not go further to say as what should ·/the Court do in absence of such noticeo He conceded that the Bill ·,of .Y Costs he had filed was dismissed because it was not proper. But he quickly added that the dismissa], was not on merit. He is .satisfied with the Ruling and so he cannot apply Rule 119 (1) of the Rules, 1979. As to time limit ~•ir. El-Maamry said that the matter is not timJ barred ·I as he had not received a letter requesting him to file the Bill of d Costs. In any case he went on to say he t-!as to get a rulµi.g of r/ Mr. Kalegeya in order to file this Bill of Costs. He could not remember when he received the ruling. Finally he subfnitted ·, that in the interest of justices this Bill of Costs should not :,1 .be ' dismissed on technicalities. It is not in dispute that tbe Bill of Costs fi!ed /on 27/10/92 by Mro El-Maamry was dismissed for reason that it was ,, not proper. •I The issue for determination and decision is whether1 th~ cause taken • l'I by Mr. El-Maamry in filing further Bill of Costs is proper in law. ? Hr. El-Maamry said it is proper whereas Mr. Ukongwa ~aid it is not. What is a dismissal? Accordine to BLACK'S LAW DICTIONARY the word is defined thus:- An order or judgment finally disposing of an actioµ, sui:t, motion etc .• {,iti1out trial of the issue involved~ •••• /3 3 - So long as it finally dispose of an action, suit or mo~'ion t h ' •I once the case is dismissed by competent court or tribunal,.it is my :, '• considered view that the remedy lies to the higher court od tribunal ,, by way of an appeal and not to re-open the matter in the same .very i/ court or tribunal. In any case if Er .. El-Maamry was of th:~ V:'iew ,. ' i:_i 1 1 i that this Court has jurisdiction to entertain the matter then he has :/ to indicate soo In other words the burden of proof lies tipcin himo i'/ . ,. But Mr. El-Naamry did not discharge that burden. ,; J :: Novf as the matter was ai:ijudicated by a competent Taxing Ma.ster); ,ii ;:~ .•,,, whether rightly or wrongly I am functus officioo Havi#g said so it ·' ,, is of no·use to deal Hith the issue of time limit. Accordingly the matter is hereby struck out. i :1 ,) •] Dated at Dar es Salaam this ??.,,_d day of April,' 1997. ,/