george masalu vs bank of tanzania another 2017 tzhc 2043 12 april 2017

IN THE HIGH COURT OF TANZANIA (MWANZA REGISTRY) AT MWANZA HC CIVIL APPEAL NO. 90 OF 2016 (Arising from the decision o f the D istrict Court o f Nyamagana in m iscellaneous Application No. 34 o f 2015) GEORGE MASALU .........................................APPLICANT VERSUS BANK OF TANZANIA & ANOTHER.........RESPONDENTS RULING BEFORE:MAIGE, J On this appeal came for hearing, I requested the parties to address me whether an appeal is an appropriate avenue in a decision of a district court refusing to extend time within which to apply for bill of costs. Both the counsel who were in the conduct of this appeal, , Mr. Malimi, Mwenyeyuni, for the appellant and Miss. Doris, for the respondent were in agreement that the appropriate way foward was reference to the High Court. On that account therefore, the appellant prayed to withdraw the appeal with a liberty to refile. The application at hand is for extension of time to apply for bill of costs. The claim for bill of costs and the procedure for enforcing the same are set out in the provisions of the Advocate Remunerations Order G,N. No. 264 of 2015, Henceforward, "the regulations"). The regulations are made under section 49 (3) of the Advocates Act, Cap. 341 (R.E., 2002). Under the regulations, jurisdiction to entertain bill of cost proceedings is conferred to a taxing officer. Order 3 of the regulations defines "a taxing officer" to include the Registrar or Dispute Registrar of the High Court, the Resident Magistrate in Charge of a Resident Magistrate Court and a Resident Magistrate in Charge of the District Court. It also includes any other officer as may be appointed by the Chief Justice. As I understand the regulations, where the bill of cost is lodged at a subordinate court, the taxing officer shall be the magistrate in charge and where at the High Court the Registrar or his Depute as the case may be. Under order 7(1) of the regulations, a party aggrieved by a decision of a Taxing Officer may fault the decision to a single judge of the High Court, by way of reference. My understanding of the provision is that the avenue for reference to a single judge is available regardless of the fact that a decision is in respect of a proceeding finalized by the High Court or subordinate court. The reason being that the term "Taxing Officer" covers both the magistrate in charge and registrar of the High Court without discrimination. The issue which I have to dissolve here is whether a decision refusing to extend time within which to apply for bill of costs is a decision of Taxing officer for the purpose of order 7(1) of the regulations. Admittedly, this issue has taxed my mind considerably. As a step to resolve the issue, I find it inevitable to firstly considered as to whether the jurisdiction to entertain an application for extension of time to prefer a bill of costs, is within the general institutional civil jurisdiction of the High Court or subordinate courts or within the personal jurisdiction of the Taxing Officer? As I pinpointed herein above, the jurisdiction to entertain an application for bills of costs is specifically conferred to a magistrate in charge or registrar of the High Court, as the case may be. It is an ex-officio jurisdiction conferred to the specified officers of the court. Undoubtedly, an ordinary resident magistrate of a subordinate court much as it is for a High Court judge does not enjoy original jurisdiction to entertain an application for bills of costs however inferior the proceedings may be to other proceedings. An application for extension of time, though is not in itself an application for bill of costs, it is in a away attached to the intended application for bill of costs. If I can put it more clear, an application for extension of time is a preliminary to the substantive application for bill of costs. Indeed, it is inferior to the substantive application for bill of costs. It would appear to me to be the law that, in order for a court to have jurisdiction to entertain a preliminary to an action, it must have jurisdiction to entertain the substantive application. Since the jurisdiction to entertain an application for bill of cost is conferred exclusively to a Taxing Officer, the jurisdiction to entertain a preliminary thereto is in the same token conferred exclusively to the same officer. In my opinion therefore, the jurisdiction to hear and determine an application to extension of time to file a bill of costs is exclusively conferred to a resident magistrate in charge where the proceedings is entertainable by subordinate and a registrar of the High Court or his dispute where the same is at the High Court. Applying the foregoing in the instant matter, it is my considered opinion that the decision in question much as it was in relation to a preliminary step toward applying for a bill of costs, it was or it ought to be a decision of a Taxing officer for the purpose of order 7 (1) of the regulations. The proper remedy was thus a reference to a single judge of the High Court and not an appeal to the High Court. The appellant has sought to withdrawn the application with a liberty to refile. The prayer for withdrawal which was conceded by the counsel for the respondent was made when neither of the parties had raised a preliminary objection. As I narrated elsewhere in this ruling, the issue of maintainability of the appeal was raised by the court on its own motion. The prayer for withdraw can thus not have any effect of preempting a preliminary objection. The issue which calls for a judicial answer is whether the instant appeal is capable of being refilled afresh so that the order as to a liberty to refile it can be relevant. The answer to this question is obviously no. The reason being that you cannot grant leave to appeal against a decision which is not appealable. In any event, an order withdrawing an appeal without a liberty to refile operates as a constructive res-judicata to a subsequent appeal and not a different action such as reference. For those reasons therefore the appeal is hereby marked withdrawn without a liberty to refile. I make no order as to costs. It is so ordered. I.MAIGE JUDGE AT MWANZA 12/ 04/2017