international commercial bank t ltd and another vs primi aloyce mushi 2020 tzhclandd 156 18 may 2020

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM CIVIL REFERENCE NO. 10 OF 2019 (Arising from the Ruling of the Taxing Master dated 01/10/2019 in Bill of Costs No. 30 of 2017) INTERNATIONAL COMMERCIAL BANK (T) LIMITED...................... .1st a p p l ic a n t YONO AUCTION MART & COMPANY LIMITED..................... 2nd APPLICANT VERSUS PRIMIALOYCE MUSHI.................................. RESPONDENT Date of Last Order: 06-03.2020 Date of Ruling: 18.05.2020 RULING V-L. MAKANI. J. This is an application for reference made under Order 7(1) of the Advocates Remuneration Order, 2015. The application is by way of a Chamber Summons supported by an affidavit of Yohanes Konda, Advocate from FB Attorneys for the applicant. The applicant is praying for the following orders: /. That this honourable court be pleased to make a finding that there existgood cause (s) for granting orders being sought herein. ii. That this honourable court be pleased to make a finding that the Taxing Masterproceeded withoutjurisdiction in entertaining the respondent's application for bill o f costs. iii. That this honourable court be pleased to quash and set aside the ruling by the Taxing Master dated 1st October, 2019 for it being improperly procured as the main case is still ongoing. iv. In the alternative, that this honourable court be pleased to make a finding that the ruling of the Taxing Master dated 1st October, 2019 is improper for it being made in contraversion o f the principles o f taxation o f bill o f costs. v. That the ruling o f the Taxing Master is improper for accommodating matters extraneous to judgment o f the court from which order for costs is obtained. vi. That the ruling of the Taxing Master is improper and bad in law for unjudicial exercise o f discretion. vii. That the ruling o f the Taxing Master is improper for ignoring the judgment debtor's defence and without assigning any reasons(s). viii. That the ruling o f the Taxing Master is improper for inconsistence and for considering wrong and irrelevant facts in determining the instruction fee and for being made on wrong or undisclosed order under the Advocates Remuneration Order, 2015 GN No. 264 of 2015. ix. That for the sake o f advancement o f justice, this Honourable court be pleased to order for remittance of the Respondent's application o f bill o f costs for re­ assessment ab initio by another Taxing Master. x. Costs to be provided for, and, xi. Any other orders or relief(s) this Honourable Court deems fit to grant. Before the hearing of the application could proceed, Counsel for the respondent Mr. Byarushengo orally raised a point of objection that this court has been ceased with jurisdiction to entertain the matter as the applicants have shown their intention to go to the Court of Appeal and a Notice of Appeal has already been issued. Since this was a matter on jurisdiction of the court Counsel for the parties were invited to address the court on the said issue. 2 Mr. Byarushengo gave a history of the matter. He said the respondent instituted Land Case No. 162 of 2013 wherein on 12/10/2016 he was allowed to proceed exparte for non-appearance of the applicants. On 17/02/2017 the court pronounced judgment in favour of the respondent with costs and the applicant filed a bill of costs of which ruling was delivered on 22/10/2019. Before the filing of this reference the applicants filed an application to set aside the ex-parte judgment which application was dismissed on 03/08/2017 for want of prosecution. Being aggrieved with this decision the applicants prayed for the dismissal order to be set aside vide Misc. Application No. 670 of 2017 which was also dismissed on 20/05/2019. Being aggrieved with this decision the applicants filed a Notice of Appeal on 17/12/2019 after obtaining leave vide Misc. Land Application No. 394 of 2019. He said since there is a Notice of Appeal then jurisdiction of this court is ceased and he cited several cases namely, Noman Mahboub t/a Noman Al Mahboub General Trading Corporation vs. Milcafe Limited, Commercial Case No. 41 of 2003 (HC-Commercial Division-DSM)(unreported) which quoted the case of Matsushita Electric Co EA Limited vs. Charles George t/a G.G. Traders, Civil Appeal No. 71 of 2001 (CAT)(unreported) - once a notice of appeal has been issued the jurisdiction of the High Court ceases save for specific matters provided for; he also cited M/S Law Associates Advocates vs. Independent Power (T) Limited [2004] TLR 276; Tanzania Electrict Supply Limited vs. Dowans Holdings SA (Costa Rica) & Dowans Tanzania Limited, Civil Application No. 142 of 2012 3 (CAT-DSM)(unreported); NIC vs. Kyeyambah Quaker [1999] TLR 150. With the authorities cited, Mr. Byarushengo stated that it goes without saying that the court has no jurisdiction to entertain the application for reference. He prayed for the reference at hand be stayed pending the outcome of the appeal. He also prayed for costs. Mr. Ishengoma who was advocating for the applicants said he did not have a problem with the history of the case, but was not comfortable with the argument that the court had no jurisdiction to entertain the application for reference. He said he did not have a problem with the cited cases either and he added another one Aero Helico[pter (T) Limited vs. F.N. Jansen [1990] TLR 142 and said these were a foundation to the principle that was relied upon by his colleague. He however pointed out that the principle was not universal to all civil matters, but it was intended for cases falling under the Civil Procedure Code CAP 33 RE 2019 (the CPC). He said all the cases cited are guided by the CPC however, the reference before the court is under the Advocates Remuneration Order, 2015 which are not proceedings under the hierarchy of the CPC. He said Taxation Reference had nothing to do with rules and principles of the CPC and so cannot be affected by the Notice of Appeal that has been filed. He relied upon the persuasive case of Kenya Jorath vs. Kigamo & Associates [2002] 1 EA 92 (CAK). I have listened to the submissions by the learned advocates. It is indeed without dispute that appeal process at the Court of Appeal has begun between the parties since leave was granted and a Notice of 4 Appeal has been duly filed. Mr. Ishengoma claimed that since this matter is under the Advocates Remuneration Order, 2015 and does not emanate from the CPC then the High Court has jurisdiction to hear and determine the application for reference. However, it is very clear from the case of Matsushita Electric Co. Limited (supra) that once the process of an appeal has been initiated then the High Court is seized with the jurisdiction to proceed with any matter in respect of the matter save for some situations where the court stated: "Once a notice of appeal is fifed under rule 76 then this Court is seized o f the matter in exclusion o f the High Court except for applications specifically provided for. Such as leave to appeal, provision o f the a certificate of a point o f law or execution where there is no order of stay o f execution from this Court." In the case of Law Associates Advocates (supra) the application was basically an application arising from Advocates Ordinance. However, Counsel for the applicant wanted the court to invoke the powers of the section 95 of the CPC which the court held that once there is a Notice of Appeal the proceedings cease to be before the High Court and the CPC ceased to apply to the proceedings. It is apparent from the above cases that, Mr. Ishengoma's argument would not stand because once there is a Notice of Appeal, it does not matter whether or not the matter emanates from the CPC or any other law, this court is seized with jurisdiction to entertain the matter save for the listed type of applications. In other words, it is only those applications which have been mentioned in the said case of 5 Matsushita Electric Co. Limited (supra) which can be entertained by the High Court irrespective that appeal process to the Court of Appeal has already been initiated. On a similar vein, I am bound by the decision above and I thus hold that once there is a Notice of Appeal then this court ceases to have jurisdiction on the matter between the same parties. Accordingly, I uphold the preliminary objection and order that these proceedings be stayed pending the disposal of the intended appeal. I will, however, make no order as to costs in the present application. It is so ordered. 6