HAMIS HUSSEIN RAMADHANI ANOTHER V JUMA KILONGOZI AND 6 OTHERS

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA TABORA SUB-REGISTRY

AT TABORA MISCELLANOUS REFERENCE APPLICATION NO. 26540 OF 2024 (Arising Taxation Cause No. 000018557 of 2024 in the High Court of Tanzania at Tabora before Hon. Pamela Mazengo dated 07th! 10/2024, Originating from Land Cause No. 09 of 2022 in the High Court of Tanzania at Tabora before Hon. Matuma , J.) 1. HAMISI HUSSEIN RAMADHANI (AsAdministrator of~ the Estate of the Late JOHA ISMAIL> 2. MOHAMED RAMADHANI MSAFIRI (As Administrator ' APPLICANTS of the Estate of the Late SADAALI KALUA)

VERSUS 1. JUMA KILONGOZI 2. MGAWALAFLEKA 3. THABIT NTIJE 4. EMMANUEL MWAMI RESPONDENTS 5. WILLIAM M. HUDUMA 6. TABORA MUNICIPAL COUNCIL 7. THE ATTORNEY GENERAL

RULING 26th March and 10th April 2025 MIRINDO, J.: [1] Two applicants are challenging the order of a taxing master dismissing for want of prosecution their application for bill of costs. At the commencement of the hearing, I asked counsel for both sides whether the reference before me was competent. 1 [2] Advocate Hassan Kilingo for the applicants contended that the application was competent because Order 7 (1) of the Advocates Remuneration Order, GN. No. 264 of 2015 authorise reference against any decision of the taxing master to the High Court. He stated that the reference has been filed through chamber summons and supported by affidavit in compliance with the provisions of Order 7(2). He concluded that the legal position that any decision of the taxing master may be subjected to reference to the High Court was affirmed by the decision of this Court in Eric John Mmari v M/S Herkin Builders Ltd (Miscellaneous Commercial Application No. 110 of 2023) [2024] TZHC Com D 57. [3] On the other hand, Advocate Samwel Ndanga for the respondents argued that the reference was incompetent because the taxing master did not rule on the merits of the bill of costs. Advocate Ndanga noted that the way forward for the applicants was to apply to set aside the dismissal order before the taxing master. He prayed that the reference be struck out with costs. [4] I have taken an opportunity to review

the legal status of a reference filed at the High Court pursuant to an order striking out the bill of costs. At first there were conflicting decisions of the High Court on this issue. There was a line of authorities including Eric John Mmari relied upon by Advocate Kilingo as well as the cases of Wahid Abdallah Ally v Access Bank Limited (Civil Reference No. 21 of 2023) [2024] TZHC 213 and M/S Wulkan Engineering Ltd v M/S Lodhia Plastic Industries Ltd (Civil Reference No. 3 of 2023) [2023] TZHC 23536 (13 December 2023) taking the position that Order 7 (1) authorises reference against every decision of the taxing master and there is no room for applying the provisions of the Civil Procedure Code. More specifically, these authorities allowed 2 reference in respect of orders from taxing masters striking out bills of costs for want of prosecution. [5] A second line of authorities took the view that a reference from an order striking out a bill of costs was inappropriate. In Benjamin! Mwakyala v Geofrey A. Ndalanda (Land Reference 6 of 2020) [2021] TZHC 940, this Court (Ebrahim J) borrowed a leaf from the provisions of the Civil Procedure Code and struck off the reference on the principle that the applicant should have first applied for restoration of the bill of costs before the taxing master. This reasoning was applied by Maghimbi J in Tanzania Investment Bank v Cipex Co Ltd

(Civil Refence No. 4 of 2022) [2023] TZHC 23222 where the applicant filed a reference in connection with an order striking out a bill of costs on account of various irregularities. She adumbrated the rationale for refusing reference as a first remedy against orders striking bills of costs: It is trite law that the principle applicable in other applications and suits on the effect of striking out an application squarely applies in Taxation Causes and the resultant Reference application. Applications which are eligible to be referred for reference from the decision of the Taxing Master are those which finally determine the rights of parties in so far as the bill of costs is concerned. Therefore, even in this application, the principles applicable in a matter that was struck out is the same, the party is not precluded from bringing a fresh application and the matter was not determined on substance. [6] This reasoning was finally been endorsed by the Court of Appeal in Josia Lengoya Sademaki v Julius Cleopa and Others (Civil Appeal No.74 of 2021) [2024] TZCA 792. A taxing master in this case allowed the respondents to amend a bill of costs after they conceded to the appellant’s preliminary objection. Dissatisfied with the order granting 3 leave to amend the appellant filed a reference in the High Court. The High Court upheld the respondents’ objection and held that the order to

amend a pleading could not be subjected to a reference under Order 7 (1) of the Advocates Remuneration Order. The High Court struck out the reference and the appellant approached the Court of Appeal. [7] The Court of Appeal distinguished expressions “decision” and “any decision” in legislative drafting generally and in the Advocates Remuneration Order in particular, and concluded that the former expression is confined to final decisions of taxing masters: The question to be addressed from the above provision is whether a party to taxation proceedings can prefer a reference to the High Court judge against any resultant decision. The provision of Order 7 uses the phrase 'a decision’. In legislative drafting, whenever the phrase 'a decisionl is used, it refers to a specific type of decision as opposed to when the phrase 'any decision' is used. In other words, the way Order 7 is couched, not every decision or order of the Taxing Officer emanating from the taxation proceedings can be referred to a judge of the High Court. Now, what type of decision that can be preferred under Order 7 of GN No.

263. We have thoroughly read Part II of the Advocate Renumeration Order and realized that 'a decision' that can be referred to a judge under Order 7 is that one made in the final determination of the application filed under Order 4 of GN No. 263 of 2015. [Emphasis original] The Court of Appeal dismissed the appeal holding that the decision on leave to amend was an interlocutory one and could not be dealt with by way of reference to the High Court: 4 It is common cause that the decision of the Taxing Officer which was not finally determined is an interlocutory one, and correctly so, this means that, the same does not form a decision that can be referred to the High Court by way of reference. This is the effect of Order 7 (1) GN 263 of 2015 referred to above. As such, the Taxing Officer's order for amendment had ostensibly no decisive impact to the parties. Notably, a party can challenge a decision or order of the Taxing Officer, if it conclusively determines the rights of the parties. Therefore, the High Court judge cannot be faulted. [8] The Court of Appeal pointed out that there is only one exception under Order 9 where a reference may be brought to the High Court for opinion while a bill of costs is still pending before the taxing master. [9] It is palpably clear that in the instant case the order dismissing the bill of costs for want of prosecution was a simple interlocutory order that could not be remedied in the first instance through a refence. [10] Accordingly, I struck out the application. Each party to bear its own costs. DATED at TABORA this 10th day of April 2025 F.M. MIRINDO

JUDGE COURT: Ruling delivered in chambers this 10th day of April 2025 in the presence of the applicants in person and in the presence of Advocate Lucas Ndanga for the respondents. 5 F.M. MIRINDO

JUDGE COURT: Right of appeal explained. F.M. MIRINDO

JUDGE 10/4/2025 6