20150812 TZHC Mbeya

IN THE HIGH COURT OF TANZANIA I ATMBEYA CIVIL REFERENCE NO. 5 OF 2013 ·•• I {Refere-nee from the Decision of the Taxing Master in Biil of Costs No. 13/ 201 OJ ! DR. 'LWITIKO MWAKALUKWA & 25 OTHERS 1 ••••••• APPLICANTS VERSUS i MBEYA CEMENT COMPANY LTD ....................... RESPONDENT , i RULING Date of Last Order: 21/07/2015 Date of Ruling: 12/08/2015 A.F. NGWALA, J. This is an Application for an order to reverse! the Taxing Masters . .I • order dismissing the incompetent bill of costs and substitute thereof an order striking out. The said order I was made in the decision of n 19 th September, 2013. . I . Mr. Herbert Nyange, the senior learned counsel contended that a matter that is incompeterit ·cannot be dismi;3sed; ·•it. can ·oriiy:be struck out as held in the case of Willow Investment versus I Mbo1nbwe Ntumba and others {1997] TLR 93! Mr. Nyange insisted that,. since the matter before the Taxing Master was incompetent the Taxing Master was wrong to dismiss the application because the , · ,.. ' ' ' • . . i applicaiits •will have no right to bring a fresh matter if they v,ish to ' ' . . . J ' ' do so. 1 I In reply Mr. Tlu\l'\ray, learned advocate who represented the Respondent subn1itted that the Taxing Master was right to do so since the bill, of costs that was filed by the applicants was iI1competent, because it was not supported by vouchers. and• or receipts. as ·. required by R1,1les 4 and 55 •of · the. · Advocates Remuneration and taxation of costs Rules., 1991 (G. · N. 515 of 1991). It was his argument that the Taxing Master had the power to dismiss the said application for Bill of costs because it was incompetent as aforesaid. In view of the facts in the brief submissions by the learned counsels and the records which I have perused thoroughly, it is quite clear as ' .. . . rightly submitted ' .' .' by Mr. Nyqnge . ' that an incompetent appiication should have been struck out. It should be observed that the court is . ( ~- not properly moved when a matter before it is incompetent for .. whatever reasons and therefore it cannot determine it on merits to warrant a dismissal order. When a matter is incompetent before a court of law and the court is satisfied that there is a curable error or irregularity which renders the suit incompetent, the. only remedy for such proceedings which are incompetent, or not properly before the court is to struck off the application or suit. This is a clear position ·'held in the case of Willow·. Investment Vrs~ '. Mbornbo Ntumba and two others {1997] TRL93 at page 94 that:-> "The Application was acc~rdingly incompetent and . co~ld. not-· be heard. Application struck off'. 2 • In the present matter, as the Taxing Master hf1d correctly found I that the Bill of costs was not legally compliant,. and he could not determine, he .ought to have done exactly as ~vhat. the Court _of . . . : .· . ·. ·: .. . .• _,._.,-_ ,- ':· ·::"•__ '~:·:,.t·/~1-'· ---~ .. ··. -~-'-~-·-_-.:_._.'(_·::.:::~ Appeal of Tanzania did in. the. case . of _Willow Investment, Supra. :'.,_: .: :•:,·_,. __. ,.:.:. .,:·• ·.,:, <·-·.··'. ·>.: . ·- - : :.. ·•:·· •..... ..c·... i -_ . ·- - ·- r ·. ..: -,_ . Since the Taxing Master had found the Bill of costs incompetent; and he did not hear or determine it· on merits·, he· should have. said - . -- .· . . . . . I . in the last·words of his Ruling: "In view of the incompetence of the Bill of costs before the court, I hereby order it to bel struck off or struck ouf'. I . It is on those bases that I agree in toto with Mr. Nyange·'s submission that the holding of the Taxing Master which dismissed . . . • - . . I . . . . ... the Bill. of costs on the. ground of incompetency was ·wrong because th~•court.had . not d_etermined the taxation on ~e~it. · In the final event, as the said. Bill of costs: \vas fou.nd to. be 1 incompetent. Accordingly the prayer to reverse the dismissal order of the Bill of costs and substitute thereof with an order of striking it 1 out is granted with costs. That is the applicants are granted the costs of this: application. ~~· A.F.NiiWALA JUDGE 12/08/2015 3 I . I