CATHERINE HENRY MALILA VS CAPITAL RADIO AND OTHERS CIVIL REFERENCE NO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA DAR ES SALAAM SUB-REGISTRY

AT DAR ES SALAAM CIVIL REFERENCE NO. 8802 OF 2024 (Arising from Application for Taxation Cause No. 48 of 2023) CATHERINE HENRY MALILA…………………………………………APPLICANT

VERSUS CAPITAL RADIO…………………………………………………1ST RESPONDENT SOFIA RAJAB…………………………………………………...2ND RESPONDENT

INDUSTRIAL PRODUCTION PROMOTIONS (IPP MEDIA LIMITED) ……………………………………….3RD RESPONDENT WILBERT DEOGRATIUS MASONA……………………….....4TH RESPONDENT

RULING Date of last order: 11/10/2024 Date of ruling: 18/10/2024 A.A. MBAGWA, J. This is a reference from the decision of the Taxing Officer (Hon. J.D. Luambano) in the Taxation Cause No. 48 of 2023 delivered on 15/06/2023. The applicant has moved this Court under the provisions of Regulation 7(1) of the Advocates Remuneration Order. 2015 GN. No. 263 and section 95 of 1 the Civil Procedure Act [CAP. 33 R.E 2019]. In the chamber summons, the applicant prays for the following reliefs; 1. That this Honorable Court be pleased to set aside the decision dated 15/06/2023 in the Taxation Cause No. 48 of 2023 delivered by this Court before Hon. J.D LUAMBANO Taxing Officer and order that the said Taxation was filed within time.

2. That this honorable Court be pleased to order that the Taxation Cause No. 48 of 2023 proceeds to be heard on merit before another Taxing Officer.

3. Any other order (s) or/and relief(s) as this Honourable Court may deem fit to grant. The chamber was supported by an affidavit sworn by Catherine Henry Malila, the applicant. On the adversary, the reference was strongly contested by the respondents through a counter affidavit sworn by Mr. Kassim Mmbaga Nyangarika, the learned advocate for the respondents. 2 The material facts of the matter as gleaned from the parties’ depositions may briefly be recounted as follows. On 31st October 2022, this Court (Hon. Mruma J.), through Civil Appeal No. No. 342 of 2021, dismissed the respondents’ appeal with costs. Subsequently, the applicant being awarded costs applied to be supplied with copies of the judgment and decree to file a bill of costs. However, the applicant was not availed the same until 14th February 2023. Thus, having been supplied the necessary documents, the applicant, on 12th April 2023 filed a bill of costs via Taxation Cause No.48 of 2023. The Taxation Cause encountered a preliminary objection to the effect that it was filed out of the prescribed period of sixty days. The applicant contended that the Taxation Cause was filed within time because the time spent waiting to be supplied with copies of the judgment and decree was to be excluded in computing time. Nevertheless, the Taxing Officer did not buy the applicant’s argument. He thus sustained the objection and

consequently dismissed Taxation Cause No.48 of 2023 for being time- 3 barred. The Taxing Officer reasoned that section 19 of the Law of Limitation Act ( the LLA) could not salvage the applicant in that it does not cater to the Taxation proceedings. The Taxing Officer’s construction of section 19 (2) of the Law of Limitation Act was that the provision is confined to appeal, leave to appeal, and review. He was thus of the firm view that since the Taxation Cause is not among the three remedies mentioned, the applicant could not rely on section 19 of the LLA to exclude the time spent waiting to be supplied with judgment and decree. The applicant was aggrieved with the dismissal order. However, she could not lodge the reference within the prescribed period of twenty-one days. As such, she sought and obtained an extension of time via Misc. Civil Application No.568 of 2023 which was before Hon. E. Mkwizu J. On being granted the extension of time, the applicant filed the instant reference. On the 16th July 2024 when this matter was called on, the applicant appeared in person whereas the respondents were represented by Mr. Kassim Nyangarika, the learned counsel. Both parties unanimously prayed for a leave of the Court to argue the reference by way of written 4 submissions. This Court granted the leave as prayed and both parties filed their respective submissions. I have gone through the

depositions and the rival submissions. Whereas the applicant adamantly argued that the Taxation Cause was filed within time, Mr. Nyangarika for the respondents strongly contested the applicant’s submissions saying that the applicant ought to apply first for an extension of time. Having canvassed the rival submissions, the germane issue for the determination of this reference is whether the Taxing Officer erred in dismissing the Taxation Cause No. 48 of 2023. As hinted above, in essence, the applicant is contending that the Taxing Officer ought to exclude the time taken to be supplied with the judgment and decree in Civil Appeal No. 342 of 2021. On the contrary, the respondents’ counsel argues that the applicant had to seek and obtain an extension of time because section 19 of the Law of Limitation Act does not apply to Taxation Cause. I have keenly read the provisions of section 19 of the Law of Limitation Act on which the applicant banks her argument. I have also painstakingly read 5 various decisions of the Court of Appeal and this Court on the rule of automatic exclusion under section 19 of LLA. Admittedly, I could not find any authority where time for filing a Taxation Cause was considered vis-à-vis section 19 of LLA. However, through various decisions, the Court of Appeal has made it clear that the import of section 19 of the LLA was to avoid multiplicity and unnecessary

delay of cases where it is clear from the record that a party was waiting to be supplied with the requisite documents. In the case of Alex Senkoro & 3 Others v. Eliambuya Lyimo (as administrator of the estate of Frederick Lyimo, deceased), Civil Appeal No. 16 of 2017, CAT at Dar es Salaam, the Court had this to say on page 11; ‘We entertain no doubt that the above sub-sections expressly allow automatic exclusion of the period of time requisite for obtaining a copy of the decree or judgment appealed from the computation of the prescribed limitation period. Such an exclusion need not be made upon an order of the court in a formal application for extension of time. Indeed, that stance was taken recently in Mohamed Salimini v. Jumanne Omary Mapesa, Civil Appeal No. 345 of 2018 (unreported) where the Court affirmed that section 6 19 (2) of the LLA obliges courts to exclude the period of time requisite for obtaining a copy of the decree appealed from.’ In the instant case, there is no dispute that the applicant was supplied with judgment and decree which were necessary documents for filing a bill of costs on 14th February 2024. Although Order 4 of the Advocates Remuneration Order does not make it explicitly mandatory, it has been a practice that an application for a bill of costs should be accompanied by a decree or drawn order. The essence is to satisfy the Court that the

applicant was indeed awarded costs. See the cases of Hammers Inc Co. Ltd V. The Board of Trustees of Cashewnut Industry Development Trust Fund, Civil Application No. 213 of 2014, CAT at Dar es Salaam and Fastjet Airlines Limited vs John Mnaku Mhozya, Misc. Civil Application No. 210 of 2017, HC at Dar es Salaam. Going by the reasoning of the Court of Appeal in the case of Alex Senkoro & 3 Others cited above, I find a purchase in the applicant’s argument. Although Taxation Causes are not specifically mentioned under section 19 of the LLA, I am at one with the applicant that the automatic exclusion applies 7 because one has to attach copies of the judgment and decree while filing the bill of costs (Taxation Causes). To put it in a crude way, in every subsequent proceeding whose institution requires an attachment of a court decree, order, judgment, or ruling, the automatic exclusion rule provided under section 19 of the LLA applies. In addition, it is worth noting that what is considered not the date on which the relevant document was supplied to the party but rather the date on which the documents were ready for collection and the efforts employed by the party in obtaining such documents. See the case of Juma Hasan Luvasile (Administrator of the estate of the late Hasan Said Luvasile) vs Mashangilio Chusi Helios Towers Tanzania and 2 Others, Land Appeal Case No. 21 of 2022, HC at

Iringa. According to the record, it has been sufficiently exhibited that the decree in Civil Appeal No. 342 of 2021 was ready for collection on 14th February 2023 and that is the very date on which the applicant went to collect it. In that regard, the time for filing the bill of costs ought to be reckoned from 8 14th February 2023 when the applicant was supplied with judgment and decree. As such, on 12th April 2023 when Taxation Cause No. 48 of 2023 was filed, it was indeed within sixty days. In view of the above, I find merits in this reference. Consequently, I quash the ruling and set aside the dismissal order of the Taxing Officer dated 15/06/2023. In consequence thereof, Taxation Cause No. 48 of 2023 should be heard on merits. Each party should bear its own costs. It is so ordered. The right of appeal is explained. A.A. Mbagwa

JUDGE 18/10/2024 9