DENNIS MICHAEL MSAFIRI VS ACASTE CORPORATION LTD MISC

IN THE HIGH COURT OF TANZANIA (COMMERCIAL DIVISION) AT PAR ES SALAAM MISC. COMMERCIAL APPLICATION NO. 250 OF 2014 (Original Misc. Commercial Cause No. 4 of 2014) DENNIS MICHAEL MSAFIRI............................. APPLICANT VERSUS ACASTE CORPORATION LIMITED Formerly MILO CONSTRUCTION COMPANY LIMITED................................... RESPONDENT RULING Mansoor, J: Date of Ruling- 15 MAY 2015 The Applicant filed an application for leave to appeal to the Court of Appeal against the decision of this Court delivered on 1st day October 2014 by Hon. Judge Nyangarika, in Misc. Commercial Cause No. 4 of 2014. The Application for leave to appeal was brought under Section 5 (1) (c) of the Appellate Jurisdiction Act (Cap 141 R: E 2012), and Rules 45 (a) and 47 of the Court of Appeal Rues, 2009. The brief background of this matter is that, the Applicant presented before this Court the Bill of Costs for taxation, the application was struck out on the ground that it was omnibus, and that taxation of Bill of costs could only be done by the Taxing Master. The Applicants seeks leave that they be allowed to present the appeal to the Court of Appeal to determine the following points of law: i. whether or not the Applicant’s application was omnibus in which the Court was asked to perform what could only be performed by the Taxing Master; 2 ii. whether or not a judge can make an order for taxation of the bill of costs which are contentious; iii. whether or not a proper channel for claiming an advocate’s fees against his client after expiry of one month from the time of delivery of the bill of costs to client is by way of a suit, and; iv. Whether or not judge is entitled to raise a legal issue suo moto and proceed to decide the issue without inviting the parties or their counsels to address the Court on the said issue. Before I indulge into the submissions by the Applicant both the submissions in chief and the rejoinder submissions, I agree that the Respondent’s submissions were filed in Court on 9th April instead of 8th April 2015, as ordered by the Court, and no leave of the Court was sought and granted extending the time to the Respondents to file the submissions beyond the time prescribed. In that regard the submissions filed in 3 court by the respondent beyond the time prescribed, and without the leave of the Court, and as it was held in the case of Mwananchi Marine Products (T) Limited vs. Owners of Motor Vessels, Civil Case No. 123 of 1996 (unreported) the Reply Submissions shall be disregarded. Now coming to the application that the Applicant seeks leave of this Court to appeal to the Court of Appeal, I would say that the decision of Hon. Nyangarika J made on 1st day of October 2014 had the effect of striking out the application for taxation of the Bill of Costs for being omnibus; that the application was comprised with two applications, one action triable by the Judge, and another by the Taxing Master. Thus the application was found to be incompetent. The effect of striking out the application for being incompetent is to say that there was no proper application before the Court, and the Applicant had a chance to refile a proper one without the leave of the Court, however subject to limitations. In my opinion, I think that in this case, there is no point of law which is involved in the Ruling of this Court given by Nyangarika, J. In Misc. Commercial Application/Cause No.4 No. of 2014 worth the consideration by the Court of Appeal of Tanzania. The point itself is whether the striking out of the Applicant's application had the effect of ending the avenues to the applicant of pursuing the proper applications before the Taxing Master, and another proper application before a Judge. In other words, the point is whether or not the Application for taxation of Bill of Costs disappeared with the striking out of the first application for being incompetent or defective. The Application was not dismissed, the order of striking out the application did not end the matter. The applicant still had a chance of refiling the competent application for determination of the Bill of Costs, and procedures of appeals with regards to taxation of Bill of Costs is different from the appeals of other appealable decisions of the Court. For this reason, I hereby dismiss this application for leave to appeal to the Court of Appeal of Tanzania. The points 5 mentioned m me mnaavit as wen as me written suomissions of the Applicant contains no point of law worthy of consideration by the Court of Appeal of Tanzania. Application dismissed with no orders as to costs since the respondent failed to pursue his defence. DATED at DAR ES SALAAM this 15th day of MAY, 2015 6