joseph shimba vs musoma maganga 2021 tzhc 12569 29 november 2021

IN THE HIGH COURT OF TANZANIA TABORA DISTRICT REGISTRY AT TABORA CIVIL REFERENCE NO. 02 OF 2019 [Arising from Misc. Application No. 70 of 2014 in the District Land and Housing Tribunal for Tabora.] JOSEPH SHIMBA................................................. APPLICANT VERSUS MUSOMA MAGANGA......................................... RESPONDENT RULING Date of Last Order 08/11 l'2Q)r21 Date of Delivery 29/11/2021 AMOUR S. KHAMIS, J. Joseph Shimba filed this application for reference under Order 7(1), (2) of the Advocates Remuneration Order GN No. 263 of 2015 challenging decision of the taxing officer in Misc. Application No. 70 of 2014. In that decision, the District Land and Housing Tribunal for Tabora taxed a bill of costs in respect of costs awarded by the Miguha Ward Tribunal in Application No.01/2007 and 01/2008, Land Appeal Case No. 28/2008 before the District Land and Housing Tribunal for Tabora, Misc. Land Case Appeal No. 07/2009 and Misc. Land Application No. 73/2012 of the High Court of Tanzania, Tabora Registry. 1 The application was made by way of chamber summons supported by an affidavit sworn by Joseph Shimba, the applicant herein. In the chamber summons, Joseph Simba prayed for the following orders; i) This Honourable Court be pleased to order for and vary the decision of M.Nyaruka (taxing master) dated 31/03/2017 in Misc. Land Application No. 70/2014 as the Bill of Costs was time barred and the assessment was excessive. ii) That this Honourable Court be pleased to tax. Misc. Land Application No.70/2014 according to the laws of the land. Hi) Costs be provided for. At the hearing of the application, both parties were present in person without representation. Both applicant and respondent adopted contents of their respective affidavit and counter affidavit respectively. They had nothing to add on. In the applicant’s affidavit, he stated that the respondent filed Misc. Application No. 70/2014 (the impugned decision) in the District Land and Housing Tribunal after 120 days from date of the order awarding costs. He also averred that item 9 and 22 of the Bill of costs were taxed at Tshs. 70,000/= while it was similar to item 8 which Was taxed at Tshs. 28,000/=. The applicant further questioned jurisdiction of the taxing master to preside over the respondent’s claim, and asserted that 2 the taxing master made excessive assessment of costs without supporting evidence. Musoma Maganga, the respondent herein filed a counter affidavit in which he generally disputed the applicant’s allegations and subjected him to strict proof thereof. As regards to amounts of money taxed at items 9 and 22, Musoma Maganga said that such items were different from those under item 8 and that the same were not related. He argued that the slim of Tshs. 800,000/= taxed reflected the bill of costs filed by him and thus correct. The issue for determination is whether the application has merits. The applicant contended that the District Land and Housing Tribunal entertained the bill of costs in Misc. Land Application No. 70/2014 while its filing was time barred and that there was no leave of the Court for doing so. In reply thereof, the respondent did not explain as to how the particular application was not time barred. The law provides for limitation of time in lodging a bill of costs under Order 4 of the Advocates Remuneration Order, 2015 which reads; “A decree holder may, within 60 days from the date of an order awarding the costs, lodge an application for taxation by filing a bill of costs prepared in a manner provided for under Order 55.” In the instant case, records show that the application for taxation of costs (Misc. Application No. 70 of 2014) was filed by the respondent herein on 4th June, 2014. 3 The costs sought to be recovered were granted by the Ward Tribunal in Application No. 01/2007 and No. 01/2008, Land Appeal Case No. 28/2008 of the District Land and Housing Tribunal for Tabora, Misc. Land Case Appeal No. 07/2009 and Misc. Land Application No. 73/2012 of the High Court of Tanzania, Tabora Registry. In Misc. Land Case Application No. 73/2012, Hon. S.M. Rumanyika J (as he then was) ordered for costs on 3rd December, 2013. An order for costs in Land Case Appeal No. 28 of 2018 of the District Land and Housing Tribunal for Tabora was given by E.F. Sululu, Chairman on 10th day of December 2008. Judgment (decision) of the Miguwa Ward Tribunal in Land Dispute No. 01/2005 was delivered on the 27th day of November 2005. The respondent filing the bill of costs on 04th June, 2014 means that he was out of time and that the District Land and Housing Tribunal had no jurisdiction to entertain the same unless there was prior extension of time. In that case, and as provided for in Order 4 of the Advocates Remuneration Order, 2015, the application at hand has merits and therefore granted. Consequently, the ruling of the District Land and Housing Tribunal in Misc. Land Application No. 70 of 2014 dated 31/03/2017 is hereby nullified^ ----- It is so ordered. \y/z\ \ ' AMOUR S. KHAMIS Z JUDGE 29/11/2021 4 ORDER Ruling delivered in Chambers in presence of both parties in 5