hussein mwinyi mpeta another vs casa del sol ltd 2023 tzhclandd 16576 22 june 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT PAR ES SALAAM REFERENCE NO. 23 OF 2022 (Reference from the Decision of the District Land and Housing Tribunal for Kinondoni at Mwananyamalain Misc. Application No 822 of 2020 by Hon. R. Mbilinyi, Chairman, dated llAugust 2022) HUSSEIN MWINYI MPETA.................. Ist APPLICANT ALEX MSAMA MWITA...................................................................... 2nd APPLICANT VERSUS CASA DEL SOL LTD ............................................................ RESPONDENT RULING Date of last Order:31/03/2023 Date of Ruling:22/06/2023 K. D. MHINA, J. This reference arises from the decision of the District Land and Housing Tribunal for Kinondoni at Mwananyamala in Misc. Application (Billof Cost) No.822 of 2022, wherein the Taxing Master taxed the bill at a tune of TZS 16,284,000/= against the applicants. The reference was brought by way of chamber summons made under Order 7 (1) of the Advocates Remuneration Order, G.N No 264 of 2015, supported by the joint affidavit deponed by the applicants. i The order being sought is for this Court to reverse the decision of the Taxing Master, costs of the application and any other relief this Court deems just and fit to grant. The reference proceeded by way of oral submissions. The applicants were represented by Mr. Rajab Mrindoko, learned advocate, while the respondents were by Mr. John Gamaya and Mr. Francis Mchomvu, both learned advocates. On the first day of the hearing, this Court suo motu raised a question revolving around the propriety of the reference before this Court. The question was; "Whether a party may lodge a reference to the High Court against the ex-parte decision of the Chairman of the Tribunal sitting as the Taxing officer." Then the parties were invited to address that issue. After listening to the counsel for both parties and having gone through the record, I find that as per the decision of the Court of Appeal in Dangote Industries vs. Warnercom Ltd, Civil Appeal No. 13 of 2021, the reference is proper before the Court. Therefore, I proceed to determine the merits of the reference. 2 In support of a reference, Mr. Mrindiko faulted the decision of the Taxing Master for entertained the Bill of Cost in respect of Land Application No. 77 of 2018 and Land Application No. 412 of 2018. He submitted that in both applications, costs were not awarded. What was ordered was "cost shall follow the event, " meaning that costs shall be in the re-filed applicant if the applicant decided to re-file in the court of competent jurisdiction. In the second ground, he faulted the decision of the Taxing Master for entertaining the Bill of Cost in respect of Land Application No. 77 of 2018, which was filed out of time and without leave. He argued that the respondent only granted an extension of time to file a bill of costs regarding Land Application No. 412 of 2018. But when he filed the bill, he consolidated it with Land Application No. 77 of 2018 which was never granted the extension. On the third ground,he faulted the taxation of TZS 7,500,000/= as instructions fees in each application, which made a total of TZS 15,000,000/=.He submitted that despite being aware that instruction fees are charged in accordance with the value of the subject matter but also the taxing officer was supposed to consider the work done, nature and interest of the parties. Further, he stated that Land Application No. 77 of 2018 was 3 withdrawn while Land Application No. 412 of 2018 was struck out. Thereforethere was no involvement of advocates to attract the amount granted as instruction fees. He cited Tanzania A Rent Car vs. Peter Kimuhu, Civil Reference No. 9 of 2020, to bolster his argument. In the fourth ground, Mr. Mrindoko faulted the amount of TZS. 700,000/= that was taxed as attendance costs for the following reasons; One included the bill of costs for the application, which was filed out of time, i.e., Land Application No. 77 of 2018. Two, the law under Item 23 of the 11th schedule to G.N No. 264 of 2015 put a ceiling of TZS 50,000/= per 15 minutes, and the determinant factor is time spent and not attendance. Therefore, since the time spent was not indicated in the proceedings, the amount charged was unreasonable and unjustifiable. On the fifth ground, he faulted the decision of the Taxing Master the disbursement taxed because it included Land Application No. 77 of 2018, which was filed out of time. Further, he stated that the receipts were not attached. He narrated that, for instance, in item 21 of the bill, the amount 4 claimed for filing submissions was TZS 8000/= while the actual costs for filing submissions was TZS 4,000/=. On the last ground,he faulted the Taxing Master for delivering the Ex- parte decision without notifying the applicants. Therefore, he prayed that the bill of costs awarded be set aside. He cited Cosmas Construction vs. AroGarmets Ltd (1992) TLR 127. In response, Mr. Gamaya replied on the first ground by submitting that the construction of the words "costs shall follow the event" does not mean that costs were not awarded. In Luhumbo Investment vs. NBC and two others, Civil Appeal No. 503 of 2020 (Tanzlii), at page 15, the phrase costs to follow event means costs are awarded. On the second ground, he responded that the application for the bill of costs covered both applications No. 77 of 2018 and No. 540 of 2018. He narrated that at the Tribunal, the application for extension of time for Application No 540 of 2018 also referred to Application No. 77 of 2018,paragraph 2 of the affidavit. In that application, the applicants did not file counter-affidavits; therefore, they were estopped from raising such an issue at this point. 5 On the third ground, he submitted that the amount was justifiable and, in fact, it was taxed on a lower side of 3% of 250,000,000/=,which is TZS 7,500,000/=. Further, the issue was not complex because it was withdrawn. On the issue of attendance, he submitted that the submission from the counsel for the applicant was misconceived because he submitted on transport costs while the claim was on attendance. Under item 3 of the 8th schedule to G. N No 264 of 2015, the amount pegged for attendance is TZS 50,000/= per 15 minutes. Therefore, the amount was justified as per the case of Tanzania Rent-A-Car (Supra) On disbursement, he submitted that the amount was justified and that the receipts were produced before the DLHT. On the last ground, Mr. Gamaya submitted that the circumstances were distinguishable because the applicants were served with a summons to appear at the hearing. Therefore, non-attendance was their choice, and hence the notification of the date of the Ruling could not be a condition in such circumstances. 6 Mr. Mrindoko rejoined,reiterating what he had submitted earlier in his submission in chief. Therefore, I don't see a reason to produce the rejoinder submission in this decision. Having considered the chamber summons, its supporting joint affidavit, counter affidavit and the written submission made by the counsel for the parties, I will begin with the last ground of reference. This relates to the notice on the date the ex-parted decision was pronounced. The records of the DLHT indicate that Misc. Application No. 822 of 2020 was heard ex-parte on 9 August 2021. After that, the Ruling was scheduled to be delivered on 29 October 2021. On 29 October 2021, the Ruling was adjourned several times for different reasons. It was adjourned on 25 November 2021, 8 March 2022, 28 April 2022, 8 June 2022, 19 July 2022. The Ruling was delivered on 11 August 2022. Further, the record does not indicate either the dates when the Ruling was adjourned or on the date on which the impugned Ruling was delivered; due notice was served to the applicants. Therefore, there is no evidence that the notices were issued and served to the applicants. 7 It is from the above scenario that Mr. Mrindoko prayed for the DLHT to be set aside as per the decision of Cosmas Construction (Supra. On the other hand, Mr. Gamaya's stance was that since the applicants were served with the summons to attend during the hearing, their non-attendance was by choice. Therefore, notification on the date of the Ruling could not be a condition in the circumstances of the matter. Due to that rivalry, I revisited the Advocates Remuneration Order, 2015 (GN No. 264 of 2015) and found order 68 to read that; "68. The taxing officer shall have power to proceed to taxation ex parte in default of the 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". The order gives powers to the Taxing officer to proceed with to tax exparte, but it is silent on the notification to the parties when the exparte decision would be delivered.Despite Order Despite Order 10 (2), which reads that; 10(2) The taxing officer shall, where a client applies for taxation of a bill which has been rendered in summarized or block form, the taxing 8 officer, give the advocate an opportunity to submit an itemized bill of costs But still, on my careful reading of GN No. 264 of 2015, I failed to find any order which provides for the notification of the date of decision to the parties when an advocate is allowed to submit on anitemised bill of costs. Flowing from above, since the matter was heard by the DLHT and the issue in dispute is on the procedure, I also ventured into the Land Disputes Courts (The Land and Housing District Tribunal) Regulations 2003 ("the Regulations"), the "masterpiece" of law which governed the procedures of DLHT when exercising its mandate. Still, the Regulations also happen to be silent. The law under Section 51(2) of the Land Disputes Courts Act, Cap 206 R: E 2019 ("The Act") offers a "leeway" in case of a lacuna in the Regulation. The section reads: "51 (2) The District Land and Housing Tribunals shall apply the Regulations made under section 56, and where there is inadequacy in those Regulations it shall apply the Civil Procedure Code". 9 On this, Order XX Rule lof the Civil Procedure Code [Cap 33 R:E 2019] (the CPC) on judgments is relevant. The Order read that; "The court, after the case has been heard, shall pronounce judgment in open court, either at once or on some future day, of which due notice shall be given to the parties or their advoca tes " [Emphasis pro vided] The Court of Appeal of Tanzania expounded the applicability of the cited order in the cited case of Cosmas Construction (Supra) when it held that; 'XI party who fails to enter an appearance disables himself from participating when the proceedings are consequently ex-parte, but has to be told when the judgment is delivered so that he may, if he wishes, attend to take it as certain consequences may follow". On the validity and effect of the decision, which was pronounced contrary to Order XX Rule 1 of the CPC,there is a plethora of authorities by the Court of Appeal, such as in Awadhi IddKajass vs. Mayfair Investment Ltd, Civil Application No. 281/17 of 2017 (Tanzlii) where it was held that; io "...on the effect of a judgment not delivered in accordance with the law, that is to say; no judgment came into existence which could be appealed against. " Also, in Mashishanga Salum Mashishanga vs. CRDB BANK PLC and two others, Civil Appeal No. 335 of 2019 (Tanzlii), it was held that; "With respect, we endorse their submissions premised on our previous decisions referred to above, holding that no operative, valid and effective judgment was delivered in the presence of the parties who had no notice of the date of its delivery as required by Order XX rule 1 of the CPC". From the discussion above, there is no decision from the Tribunal capable of this court to entertain the application for reference. Therefore, since this ground disposes of the application for reference, I don't see the reason to deliberate and determine the other grounds of reference. On the remedy, since there is no valid decision/ruling from the Tribunal capable of this court the determine the application for reference,order the following: - i. The proceedings of the District and Housing Land Tribunal for Kinondoni at Mwananyamala in Misc. Land Application (Bill of cost) ii No. 822 of 2020 are quashed, and the Ruling and drawn order are set aside. ii. The case file be remitted to the District Land and Housing Tribunal for Kinondoni at Mwananyamala to be heard de-novo before another Chairman and a new set of assessors. Each party is to bear his/ her own costs. -t It is so ordered. flll . • / ■ L / K. D. frlHINA JUDGE 22/06/2022 12