ezekia mwakalukwa vs stella ndambo 2022 tzhc 15687 2 december 2022

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE DISTRICT REGISTRY OF MBEYA AT MBEYA CIVIL REFERENCE NO. 2 OF 2022 (Originating from the District Court of Rung we District at Tukuyu in Bill of Cost No. 1 of2020) EZEKIA MWAKALUKWA.............................................................. APPLICANT VERSUS STELLA NDAMBO......................................................................... RESPONDENT RULING Date of last order: 03.11.2022 Date of Ruling: 02.12.2022 Ebrahim, J. This application has been made under Order 7 (1) and (2) of the Advocate Remuneration Order, 2015. EZEKIEL MWAKALUKWA (the applicant) is seeking for this Court to examine the legality of the ruling of the taxing master Hon. Shehagilo, SRM; dated 20th May 2022, costs and any other relief(s) this court may deem just and equitable. The application was supported by an affidavit of the applicant. The matter originated from the Primary Court of Rungwe District at Masebe in Civil Case No. 25 of 2019 where STELLA NDAMBO (the Respondent) sued the Applicant for Malicious Prosecution. She claimed i compensation of TZS 3,000,000/=. The Primary Court dismissed the matter for want of jurisdiction. It decided that the matter was land dispute which is in exclusive jurisdiction of the land disputes courts. Dissatisfied, the Respondent appealed to the District Court of Rungwe vide Civil Appeal No. 1 of 2020. The appeal was allowed with costs by nullifying the proceedings of the Primary Court and ordered for retrial. Aggrieved with the decision of the District Court, the Applicant appealed to this court vide PC. Civil Appeal No. 9 of 2020. This court upheld the decision of the District Court and proceeded to nullify the proceedings and the order of the Primary Court. This court also ordered for retrial by another Magistrate before the Primary Court. In that appeal this Court did not make any order for costs. However, it appears, at the time the appeal in this court was in progress, the respondent filed a taxation cause claiming for the costs awarded by the District Court in respect of appeal No. 1 of 2020. On 20th May, 2022 the bill of costs was taxed at the tune of TZS. 2,000,000/= (Tanzania Shillings Two Million only). The Applicant has now instituted the instant application challenging the taxation on the ground of illegality. The Respondent protested the application by filing a counter 2 affidavit sworn by advocate Ignas F. Ngumbi, learned counsel for the Respondent. The application was disposed of by way of written submissions. The Applicant appeared in person, unrepresented whereas the Respondent was represented by advocate Ngumbi. Arguing the application, the Applicant submitted that taxation cause no. 1 of 2020 the subject of the present application was illegal due to the reason that it emanated from Civil Case No. 25 of 2019 and Civil Appeal No. 1 of 2020 of which both were nullified by this court through PC. Civil Appeal No. 9 of 2020. He also submitted that this court did not award costs. In response, advocate Ngumbi was straightforward that the Applicant has misconceived the decision of this court which upheld the decision of the District Court in which costs were awarded. He argued also that this court only nullified the proceedings and orders of the Primary Court but left the decision of the District Court with its order for costs undisturbed. Advocate Ngumbi therefore, prayed to this court to find that there is neither illegality nor injustice caused by the impugned taxation hence the application be dismissed with costs. 3 In his rejoinder submissions, the Applicant essentially reiterated his submissions in chief then prayed for this court to dismiss the decision of the taxing master with costs. As I have hinted earlier the application has been preferred under Order 7 (1) and (2) of the Advocate Remuneration Order, 2015. Order 7 (1) provides that: 'L4/7JZ party aggrieved by a decision of the Taxing officer, may file reference to a judge of the High Court." There is to be resolved therefore, as to whether the application is meritorious. The Applicant's reason for his application as can be gathered at paras 5 and 6 of his affidavit is that the taxation is illegal since it emanated from the decisions of the lower courts which were nullified by this court. Advocate Ngumbi is of the views that the decision of the District Court where the costs were awarded was not nullified. I have perused the record and read the judgement of this court by (Hon. Mambi, Judge). I am constrained to concur with advocate Ngumbi that it did not nullify the decision of the District Court. This Court did not even make any decision regarding the costs awarded by the District Court. 4 Nevertheless, the Applicant is not challenging any item in the bill of costs which means that he did not challenge the merits of the taxation but, the legality of the cause. As I have found above, the bill of cost cause emanated from the decision of the District Court in which the costs were awarded and they have never been nullified. In that regard, the application is unmeritorious. It is thus, dismissed. Due to the circumstance of this matter, I make no order as to costs. Ordere^according^^\ VjO JUDGE. Mbeya 02.12.2022 5 Date: 02.12.2022. Coram: Hon. A.E. Temu-DR. Applicant: Present. Respondent: For the Respondent: ] Absent. B/C: Jenipha Mmasi. Court: The matter is coming for ruling today. The same delivered in the presence of the applicant only. Deputy Registrar 02.12.2022 DEPUTY mAR HtGH COURT OF TANZAO WEYA