Ruling Civil Reference No

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT MOSHI CIVIL REFERENCE NO. 29315 OF 2024 (C/F Taxation Cause No. 09 of 2023. Originating from Civil Case No. 07 of 2018 in the High Court of Moshi at Moshi) ELIBARIKI AIWEDIA MANGI....................................................APPLICANT VERSUS MONYAICHI SILAS MANGI……….…..………….....….........RESPONDENT RULING 25th February & 25th March, 2025 MONGELLA, J. The applicant herein filed for Bill of Costs vide Taxation Cause No. 09 of 2023 before this Court. He sought for costs incurred in Civil Case No. 07 of 2018. However, on 05.11.2024, the taxation cause was struck out on account of non-appearance by the parties. Aggrieved with the order striking out the taxation cause, the applicant has preferred this reference under Order 7 (1) and (2) of the Advocates Remuneration Order, GN. No. 263 of 2015. He therefore prays for the order to be set aside and for the cause to be restored. Page 1 of 17 The application is backed by the applicant’s own sworn affidavit. The respondent contested the application as reflected in her own sworn counter affidavit. The application was resolved by written submissions whereby the applicant was represented by Mr. Engelberth Boniphace, learned Advocate. The respondent, on the other hand, was unrepresented. Submitting in chief, Mr. Boniphace commenced by adopting the applicant’s affidavit. At the forefront, he raised a legal issue to the effect that the respondent’s counter affidavit evasively denied certain paragraphs of the applicant’s affidavit instead of specifically denying the same. He pointed the 2nd, 3rd and 5th paragraphs as being problematic. Expounding his point, he argued that a counter affidavit is an affidavit in itself within the ambits of Order XIX Rule 3 (1) of the Civil Procedure Code [Cap 33 R.E 2019]. In his stance, the alleged evasive denial meant that the applicant’s affidavit was never disputed by the respondent in terms of Order XIX Rule 1of the Civil Procedure Code. In the circumstances, he prayed for this Court to allow the application. Submitting in regard to the gist of the application, Mr. Boniphace contended that the respondent never stated in her counter affidavit whether she had the duty to enter appearance on the date scheduled for hearing. In his view, as long as the respondent failed to appear when summoned, she admitted the bill of costs. In that respect, referring to the proviso of Order 11 of the Advocates Page 2 of 17 Remuneration Order, 2015, he stressed that the taxing officer had mandate to order hearing of the bill of cost ex parte. In addition, he faulted the respondent for stating in paragraphs 3 and 4 of her counter affidavit that the applicant has not entered appearance while she too did not appear. Explaining on what transpired, Mr. Boniphace proceeded averring that on 05.11.2024, the taxing master ordered a final adjournment of the case, which resulted from failure by the parties to appear several times. That, the cause was then struck out by her suo motu. As to the remedy thereof, he argued that it was for a reference to be preferred. In support of his argument, he cited Order 7(1) of the Advocates Remuneration Order, 2015. In addition, he referred the case of M/S Wulkan Engineering Limited vs. M/S Lodhia Plastic Industries Ltd (Civil Reference No. 06 of 2023) [2024] TZHC 1191 (27 March 2024) TANZLII. Mr. Boniphace further argued that Order 68 of the Advocates Remuneration Order, 2015 prohibits the taxing officer from striking out a taxation cause set for hearing. He contended that what the taxing master ought to do is to proceed and tax the bill in the absence of the parties. To buttress his point, he referred the Court to the case of Salumu Suleiman Ally vs. Diamond Trust Bank Tanzania Ltd (Reference 7 of 2021) [2022] TZHCComD 80 (22 April 2022) TANZLII. Mr. Boniphace finalized his submissions by praying for the application to be allowed with costs. He insisted that it is the Page 3 of 17 elementary settled law in our jurisdiction that the Court will grant only reliefs prayed for. He fortified this point with the case of Melchiades John Mwenda vs. Gizelle Mbaga & Others (Civil Appeal No. 57 of 2018) [2020] TZCA 1856 (13 November 2020) TANZLII. In her reply, the respondent commenced by adopting her counter affidavit. She began by challenging that there was no affidavit filed by the applicant in reply to her counter affidavit. She averred that a fact asserted on oath ought to be controverted on oath so that the Court is given opportunity to weigh which fact is true. About evasive denial, she contended to have categorically denied the facts asserted in the applicant’s affidavit and challenged the applicant’s assertions and sworn facts. She added that she denied advocate Ibrahimu Komu’s engagement by the applicant and pointed out that the case was left unattended for over a year without reasons being assigned thereto. In that respect, she considered her averments not evasive nor amounting to admissions as alleged by the applicant. Addressing concerns on the application, she argued that the assertion that the case ought to be heard ex parte was misconceived. In her position, the provisions of Order 10 and 11 of the Advocates Remuneration Order refer to taxation costs between advocates and clients and subsequent default of non-attendance by an advocate after being served with notice. She thus found the provisions distinguishable and inapplicable in the matter at hand. Page 4 of 17 The respondent continued to argue that it is the applicant that initiated the taxation cause, thus had the responsibility to substantiate the claim instead of dwelling on the taxing officer’s discretion under Order 68. Referring to the marginal note to the provision which states: “Taxing officer may proceed ex-parte and extend or limit time or adjourn,” she alleged that the wording of that provision shows that the taxing master holds the discretion to either proceed to determine the bill ex parte, extend time limit of any proceedings or adjourn the same for proper cause or strike out or dismiss the bill to limit further adjournment. Driving the provision home, the respondent averred that in this case, the taxing officer refused further adjournment as there was no such proper cause. In her stance, the taxing offer exercised her discretionary powers judiciously as the application was left unattended for over a year. The respondent further addressed the issue relating to the engagement of he said advocate Ibrahimu Komu. She contended that there is no proof attached by the applicant in his affidavit to show that the advocate was ever instructed. With that observation, she considered the applicant’s assertion frivolous, unfounded and a mere afterthought. Referring the case of Mwalifunga vs. Mwankinga [1971] HCD, she averred that this Court should not interfere with the decision of the taxing master based on pure speculations. Page 5 of 17 The respondent further challenged the applicant arguing that he assigned no reason for his nonattendance on the entire time since the cause was filed in January 2023 to 05.11.2024, when the bill was struck out. Referring the case of Shocked and Another vs. Goldschmidt and Others [1998] 1 All ER 372 cited in Sadru Mangaiji vs. Abdul Aziz Lalani & Others (Misc. Commercial Application 126 of 2016) [2016] TZHCComD 2038 (16 November 2016); she averred that the applicant’s conduct before the alleged non-appearance should be taken into consideration. Commenting on the applicant’s conduct, she challenged that the applicant was never diligent or prompt in prosecuting the taxation cause as to warrant the taxing officer to exercise her discretion in his favour. Commenting on the available remedy to the applicant, she argued that since the matter was struck out, the applicant had the opportunity to refile the same. She fortified this assertion with the case of Pita Kempap Ltd vs. Mohamed I.A Abdulhussein, Civil Application No. 128 of 2004 (CAT, unreported). In addition, she further referred the case of Benjamin Mwakyala vs. Geofrey A. Ndalanda (Misc. Land Application 110 of 2021) [2022] TZHC 15667 (19 December 2022), averring that the applicant ought to have applied for restoration of the bill of costs as the taxing master had not decided anything in respect of which a reference could be preferred. The respondent finalized her submissions stating that this application suffers the same fate as it is incompetent. She prayed for the same to be dismissed with costs. Page 6 of 17 Rejoining, Mr. Boniphace first countered the argument that the applicant ought to have filed a reply to counter affidavit. He found the argument lacking legal basis. He further faulted the argument for lacking legal authority supporting the same. He refuted the respondent’s claim that the denial was categorical insisting that the respondent’s counter affidavit evasively denied the applicant’s averments at paragraphs 3 and 5 and that the same amounts to an admission to the facts asserted by the applicant. The learned Counsel further countered the respondent’s contention that the matter being heard ex parte is absurd and misconceived. He considered the argument a misdirection of mind on part of the respondent stressing that his averments are based on Order 68 of the Advocates Remuneration Order. Commenting on the use of the word “shall” in Order 68, he contended that the same waves the discretion of the taxing master as per Section 53 of the Law of Interpretation Act [Cap 1 R.E 2019]. With respect to the reference to the marginal note made by the respondent, he challenged that the marginal note is not part of the law in terms of the provisions of Section 26(2) of the Law of Interpretation Act. Mr. Boniphace insisted that the taxing master had issued an order for last adjournment and notice was issued for them to appear on 05.11.2024 failure of which would make the matter proceed ex parte. He contended that since the parties had not entered appearance then the taxing master ought to have proceeded ex parte as instructed under Order 11 of the Advocates Remuneration Order. In his stance, the assertion that the taxing master had proper Page 7 of 17 cause to exercise her discretion to dismiss the matter as it had been pending for a year was frivolous, unfounded and misconceived. He also challenged the respondent’s contention that the taxing master had no legal basis to exercise such powers under Order 68. With respect to proof that the applicant indeed instructed an advocate, Mr. Boniphace challenged that there is no requirement to admit receipts to prove instruction fees. He fortified this averment with the case of Edisa Bais vs. Frester Investment Co. Ltd (Misc. Civil Reference 1 of 2022) [2022] TZHC 11838 (3 August 2022) TANZLII. He further challenged the case of Mwalifunga vs. Mwankinga (supra) on the ground that it was irrelevant to the matter at hand as the same related to the general assumption that women live with their husbands to obtain additional bride price for their parents, but which requires proof. In his view, this was contrary to the taxation proceedings whereby proof is not required. The learned Counsel further distinguished the case of Pita Kempap Ltd vs. Mohamed I.A Abdulhussein (supra)for being irrelevant to the matter at hand. He argued that the matter in that case was struck out for being incompetent while the taxation cause at hand was struck out for non-appearance. He further distinguished the case of Benjamin Mwakyala vs. Geofrey A. Ndalanda (supra) from the case at hand arguing that the matter in the said case was dismissed for want of prosecution while the taxation cause at hand was struck out for non-appearance. Page 8 of 17 Mr. Boniphace finalized his rejoinder submissions praying for the reference to be allowed with costs. After duly considering the rival submissions of the parties, I prefer to commence addressing the issue raised by the applicant’s counsel challenging the respondent’s counter affidavit on ground of being evasive. Mr. Boniphace alleged that the contents of paragraph 2, 3, and 5 of the respondent’s counter affidavit evasively denied some paragraphs of the applicant’s affidavit thereby connoting admission of the averments therein. I have observed the respondent’s counter affidavit especially the challenged paragraphs 2, 3 and 5. At paragraph 2, the respondent noted paragraphs 1, 2 and 10 of the applicant’s affidavit. For ease of reference, I shall reproduce the said paragraph as hereunder: “2. That the contents of paragraphs 1, 2 and 10 of the Applicant's affidavit are without prejudice noted.” As evident on record, the noted paragraphs in the applicant’s affidavit contain facts relating to the applicant’s identity, the address of Mr. Boniphace who represents him and the fact that the taxing master did strike out Taxation Cause No. 09 of 2023. Considering those contents, I do not agree with Mr. Boniphace that the respondent’s act of noting the said paragraphs in the applicant’s affidavit amounts to evasive denial. It rather presents admission and express indication by the respondent that she does not contest the same. Page 9 of 17 As to paragraph 3 of the respondent’s counter affidavit; it is clear that the contents of paragraph 3, 4, 5, 6, 7, 8, 9, 15 and 16 of the applicant’s affidavit were without prejudice partly noted. The respondent stated that she noted the said paragraphs to the extent that the taxation cause was filed and eventually struck out after being left unattended for over a year. I will hereunder reproduce the paragraph for ease reference: “3. That the contents of paragraphs 3, 4, 5, 6, 7, 8, 9, 15 and 16 are without prejudice partly noted only to the extent that that taxation cause was filed and eventually struck out after been left unattended for over a year. The Respondent vehemently disputes that the said Advocate Ibrahim Komu was duly engaged to pursue that cause and or he ever entered appearance therein or at all that the Applicant diligently prosecuted the same and or made follow-up as insinuated. The Applicant is put to strict proof thereof. As seen above, the respondent disputed one advocate Ibrahim Komu being engaged to pursue the cause or even entering appearance. She also denied that the applicant was ever diligent in prosecuting the taxation cause. This, in my considered view, does not in any way reflect evasive denial. While she may have collectively countered the mentioned paragraphs, the respondent went as far as to specifically state why she partly noted some facts and contested others. With respect to paragraph 5 of the respondent’s counter affidavit whereby she replied the contents of paragraph 11,12 and 14 of the applicant’s affidavit; I have found that she stated that the Page 10 of 17 applicant was legally bound to prosecute his application and given the circumstances of the cause, the decision by the taxing master was legally justified. She further stated that the applicant was not diligent or prompt in pursuing the claim. The said paragraph states as hereunder: “5. As for paragraphs 11, 12, 13 and 14 the Respondent avers that, the Applicant was legally bound to prosecute his application and given the circumstances of this case the trial court was legally justified in its decision. The Applicant was never diligent or at all prompt in pursuing his frivolous claim. The Applicant is otherwise put to strict poof thereof.” Under paragraph 11,12 and 14 of the applicant’s affidavit, the applicant raised the allegation that the strike out order was illegally made. As per the wording of paragraph 5 of the respondent’s counter affidavit, I find there was no evasive denial. She expressly denied the contention that the strike out order was illegal, hence termed the same legally justified. In the foregoing observations, I find Mr. Boniphace’s allegations as to the mentioned paragraphs presenting evasive denials, thus connoting admission, untrue. Further, I find it a rather odd approach to challenge the facts deponed in the respondent’s affidavit in submissions rather than filing a reply affidavit thereto. While it is not mandatory, the law allows for the same and it is the applicant that weighs whether it is necessary to reply. Page 11 of 17 Without prejudice thereto, even if the challenged paragraphs appeared to have issues, the same would have probably led to being noted that indeed the respondent did not deny the applicant’s claim. This however is not the determinant factor on whether the application at hand should be granted. The Court would still have to satisfy itself that the applicant has proved existence of sufficient reasons to warrant restoration of the taxation cause. To this point, I move on to the issue at hand. The applicant advanced two reasons on why the taxation cause should be restored: one, that he had procured services of an advocate one, Ibrahim Komu, who seemingly abandoned the matter and he was not aware of the progress until he engaged Mr. Boniphace to follow up on the same. Two, that the order to strike out the application was illegally made contrary to the requirement under Order 68 of the Advocates Remuneration Order. The first reason, though featured in the applicant’s affidavit, was not addressed by Mr. Boniphace in his submission in chief for reasons best known to himself. The respondent however, replied on the issue whereby she contended that there was no proof that the applicant ever procured services of the alleged Advocate Komu. Mr. Boniphace rejoined arguing that the law does not mandate proof of instruction to the advocate by presentation of receipts on the instruction fees. Page 12 of 17 Having observed the applicant’s affidavit and considering that the applicant blames his non-appearance on the advocate he allegedly hired, I agree with the respondent that there ought to have been proof that the said advocate being instructed to represent the applicant in the taxation cause. Even if the law does not require presentation of receipts of payment of instruction fees, a proof of some kind in engaging the said advocate ought to have been provided. In my view, proof through an affidavit from the said advocate Komu or of communication between the Applicant and the said advocate Komu in relation to the taxation should have been provided. The applicant could also at the least, provide proof of his attempt to inquire on the progress of the taxation cause as he alleged. Considering that no proof whatsoever was submitted, the statements mentioning the said advocate Komu are merely hearsay. The paragraph also stating that Mr. Boniphace was instructed to follow up on the matter is also hearsay considering that his affidavit admitting such facts was never annexed to the application. Briefly put, there is no proof that said advocate Komu was ever instructed to foresee the taxation cause. Further, even if there was proof that the said advocate was procured to foresee the taxation cause, the applicant was not to relax without knowing the progress of the cause. He still had the duty to ensure that the advocate upholds the part of his bargain. The fact that the applicant even stated that he sometimes could not reach the alleged counsel shows that he was in doubt in Page 13 of 17 relation to the progress of his application for a long time. Even in those circumstances, he ignored the said doubts until the final hour when he only came to find out the matter was struck out. In the premises, the applicant has vividly demonstrated negligence in following up on the taxation cause. This Court can thus not help a person who opted to sit on his right. The first reason is thus found to be unjustified and rejected. With regard to the issue of illegality on the order to strike out the Bill of Costs, I wish to start by reproducing the provision of Order 68 of the Advocates Remuneration Order, to which the claim is founded. The provision states: “68. The taxing officer shall have power to proceed to taxation ex parte in default of appearance of either or both parties or their advocates, and to limit or extend the time for any proceeding before him, and for proper cause to adjourn the hearing of any taxation from time to time.” As seen, the provision expressly grants discretion to the taxing officer to proceed ex parte in default of appearance of either both parties or their advocates, to limit or extend time for any proceeding or for proper cause adjourn hearing of the taxation cause. It does not mandate the taxing officer to proceed ex parte where both parties are absent. The use of the word “shall” in the provision does not in any way make it mandatory. The word “shall” is not always used to impose mandatory requirement, so the context in which it is applied should be taken into consideration. This was well stated by the Court of Appeal in the case of Arcopar (O.M.) S.A vs. Harbert Page 14 of 17 Marwa & Family Investments Co. Ltd & Others (Civil Application No. 94 of 2013) [2015] TZCA 554 (3 February 2015) TANZLII, whereby the Court stated: “Simply put, this means, that the, word "shall" does not necessarily mean mandatory in every case it is used in any written law. To determine the real intention any such provision must be read in its context.” In addition, the word “shall” has been used in the provision to confer powers to the taxing officer to employ the options listed. It however, does not compel him/her to exercise such powers rendering the powers discretional. See also, Goodluck Kyando vs. Republic (Criminal Appeal No. 118 of 2003) [2006] TZCA 181 (21 August 2006) and Chiriko Harun David vs. Kangi Alphaxad Lugora & Others (Civil Appeal No. 36 of 2013) [2013] TZCA 189 (31 May 2013) (both from TANZLII). Mr. Boniphace made refence to Salumu Suleiman Ally vs. Diamond Trust Bank Tanzania Ltd (supra). I have observed the decision and found the matter discussed therein resulted from a preliminary objection that questioned whether the only way to challenge an order of dismissal of a taxation cause is to prefer a reference. In that decision that my learned brother, Mkeha J. noted that a reference could be preferred in such a matter as far as Order 68 of the Advocates Remuneration Order is concerned. Otherwise, an application of restoration is to be preferred if the taxation cause was not heard. He held: Page 15 of 17 “I am mindful that in Taxation Causes the Taxing Officer can proceed to tax a bill of costs even in the absence of both parties (Paragraph 68 of the Advocates Renumeration Order). As such, and in terms of the submissions by Mr. Lamwai for the applicant, when a Taxation Cause is struck out or dismissed for want of prosecution, it becomes a matter of breach of taxation principles for which a reference can be preferred. I agree. However, in this case, the applicant is moving the court by way of a reference to do what ought to have been done at first instance, by the Taxing officer. To determine the quantum of the costs awardable to the applicant before the Taxing officer exercises his original jurisdiction on that aspect. That would amount to contravention of taxation principles.” In consideration thereof, I do not see how the decision above can be taken to mean that it is mandatory for a taxing officer to proceed ex parte in the absence of both parties. As it appears, my learned brother Mkeha J, did also express the presence of a discretion by stating that “the taxing officer can proceed…” As far as the applicant is concerned, he ought to have demonstrated the alleged illegality, which I find he failed to do. He ought to have shown how the taxing master acted injudiciously by refraining to exercise her duty to proceed ex parte on non- appearance of both parties. As noted by the respondent and as I have also observed on annexed records, the taxation cause was filed on 25.01.2023 and on 16.10.2024, the taxing officer scheduled a hearing for the last time stating that, in their absence, the matter would be herd ex Page 16 of 17 parte. On 05.11.2024, the taxing officer decided to strike it out after the parties failed to appear. This matter stayed with the taxing master for almost two years. During that long time, neither party entered appearance whether in person or through their advocates. This, in my considered view, was reason enough to have the matter struck out. In the premises, this application is found to lack merit and hereby dismissed with costs. Dated and delivered at Moshi on this 25th day of March, 2025. X L. M. MONGELLA JUDGE Signed by: L. M. MONGELLA Page 17 of 17