CIVIL REFERENCE NO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA ARUSHA SUB- REGISTRY AT ARUSHA CIVIL REFERENCE NO. 08 OF 2023 (C/F Taxation Cause No. 10 of2023, in the Resident Magistrate's Court of Arusha and Taxation Cause No. 07 of2022, Originated from the Resident Magistrate's Court of Arusha Application for Execution of the Decree in Civil Case No. 46 of2001.) JULIUS CLEOPA 1 ST APPLICANT (Administrator of the estate of CLEOPA KIRIKENGORI) MR. ALFAYO KIRIKENGORI 2nd APPLICANT MR. SAMWELI MEYANI 3rd APPLICANT MR. GODSON MEYANI 4th APPLICANT VERSUS JOSIA LENGOYA SADEMAKI RESPONDENT RULING 24/05/2024 & 28/06/2024 Page 1 of 11 BADE, J. This Application was brought under Order 7 (1) and (2) of the Advocates Remuneration Order, 2015 Made Under Section 49 (3) of the Advocates Act, Cap 341 R.E 2002. The Chamber Application was supported by an affidavit deponed by Lengai Sarunga Loitha, counsel for the Applicants. The Application was contested by the Respondent who filed a counter affidavit deponed by himself. The Applicants in this Application were aggrieved by the decision of the taxing master F. Y Mbelwa, SRM in Taxation Cause No. 10 of 2023 delivered on 15/08/2023. The Applicants pray for this Court to determine the validity of the Ruling made thereto and make an appropriate order on the following grounds as depicted in their affidavit: 1. That, the Taxing Officer erred in law and in fact by failure to declare that Taxation Cause No. 10 of 2023 which originated from Resident Magistrate Court of Arusha Taxation Cause No. 07 of 2022 which in turn originated from Resident Magistrate's Court of Arusha Application for Execution of the Decree in Civil Case No. 46 of 2001 is incompetent as the 1st and 2nd Applicants were not served with summons to appear before the trial court, and the 1st and 2nd Applicants swore an affidavit to prove the same. ige 2 of 11 2. That, the Taxing officer erred in law by entertaining Taxation Cause No. 10 of 2023 which is time barred as the 3rd and 4th Applicants were served with notice of mention by the Respondent on 30th day of May 2023 after expiry of five (5) days given by law as the trial court issued a notice of mention to the Respondent on 23rd May 2023 in order for him to serve the Applicants on time. The Applicants enjoyed the service of Mr. Lengai Loitha, learned advocate while the Respondent had the services of Dr. Mchami, learned advocate. Arguing in support of the Application, Mr. Loitha addressed himself to the 2nd ground of the reference application, which appears as the 4th ground in the affidavit. He maintained that in the trial court, the Respondent lodged Taxation Cause No. 10 of 2023 on 23/05/2023, and on the same date, the trial court issued a notice of mention to the Applicants which was set to be on 08/06/2023. Mr. Loitha further argued having received the summons from the trial court, the Respondent instead of acting promptly to serve it to the Applicants within the prescribed period of five days, they served the same on 30/05/2023 after the expiration of seven (7) days. He insisted that the law requires the Respondent to serve notice to the Applicants within the period of 3 of 11 five (5) days only. That, when counting from 23/05/2023 to 30/05/2023 it will be found out that the Respondent served the notice of mention after the expiry of the mandatory five days contrary to the law which provides only for five days for the Respondent to serve his taxation cause to the Applicants. Moreover, Mr. Loitha argues that after the Respondent realized that the period for serving the summons to the Applicants had expired, he did not apply to the trial court for an extension of time to serve the Applicants with the notice. To support his argument, he cited Order 6 (1) and (2) of the Advocate Remuneration Order of 2015. Mr. Loitha contends that the holding by the taxing officer that failure to serve the opponent party within five days before the date of taxation does not render the same to be time-barred is misconceived because that law uses the word "shall" as its mandatory and not an option. In his view, the Respondent was supposed to adhere to the above provision of the law and serve a notice to the Applicants within the time prescribed by the above provision of law. To buttress his position, he cited the case of Josia Lengoya Sademaki vs Mr. Julius Cleopa Page 4 of 11 (Administrator of the estate of Cleopa Kirikengori) and 4 Others, Civil Reference No. 4 of 2016, and the case of Hekima Mwasipu and 2 Others vs Tanganyika Law society and 2 Others, Misc. Cause No. 2 of 2023. On the 1st ground of reference application, Mr. Loitha submitted that the issue of serving summons to the 1st and 2nd Applicants is governed by Order 6 (1) and 10 (4) of the Advocate Remuneration Order, 2015, arguing further that it is clear that the decree-holder after receiving notice from the trial court on 23/05/2023, was supposed to serve each Applicant personally and each Applicant would have had to sign on a copy of the served notice, and the Respondent was required to return the signed copy to the Taxing Officer to indicate that the Respondent was properly served with notice to all parties. Mr. Loitha argues that the 1st and 2nd Applicants were not served with the notice to appear before the Taxing Officer on 08/06/2023 and as such, they did not appear on the said date since they were not aware of the Taxation Cause No. 10 of 2023. In his view the said Taxation Cause is incompetent as it has contravened Order 6 (1) and 10 (4) of the Advocate Remuneration Order, 2015 by failure to serve notice to the 1st 'age 5 of 11 and 2nd Applicants. He maintains that the 1st and 2ndAapplicants swore an affidavit before this court on 24/07/2023 to deny that the Respondent did serve them any summons to appear on 08/06/2023. It is further argued by Mr. Loitha that in the hearing of the Taxation Cause No. 10 of 2023 the Respondent did not prove that he actually served 1st and 2nd applicants with summons. To support his position, he cited the case of Josia Lengoya Sademaki (supra). Opposing the Application, Dr. Mchami prays the content of the counter affidavit to form part of his submission and as concrete evidence in opposing the grant of all the prayers that the Applicants are praying, and that this court should uphold and confirm all that Hon. F. Y. Mbelwa, SRM decided in his Ruling in Taxation No. 10 of 2023. Dr. Mchami contends that all what the Applicants are arguing in their written submission it is the same as what they submitted before Hon. F.Y Mbelwa SRM, when the Taxation Cause No. 10 of 2023 was called for hearing. After due consideration of the record of this Ruling, the parties' rival submission, and their affidavits, the issues for determination here are, PaZe 6 of 11 one whether the Taxation Cause NoTO of 2023 was incompetent before the court and two, whether the Taxation Cause No. 10 of 2023 was time barred. Now, starting with first issue, it was contended by Mr. Loitha that, Taxation Cause No. 10 of 2023 was incompetent on the fact that the Respondent did not serve the notice of mention to the 1st and 2nd Applicants. Order 6 (1) of the Advocate Remuneration Order provides: "When taxation proceedings have been instituted, the taxing officer shall issue a notice specifying the date and time of taxation." Under subsection (2) of the same Order it is further provided: "(2) the notice issued under order (1), shall be served to the parties to the taxation proceedings within five days before the date of taxation and it will be accompanied by a copy of the bill of cost." The major aim of the above-cited order is to ensure that parties are aware of the taxation cause so that they can prepare for the hearing of the same. ige 7 of 11 It is on the record that Taxation Cause No. 10 of 2023 was filed on 23/05/2023. It is also on the record that both parties were absent on that date. The matter was set for mention on 08/06/2023, and on that date, the advocate for the Respondent I Decree holder Dr. Mchami and the advocate for the Applicants / Decree debtor Mr. Loitha were both present. This means that they were both aware of the presence of Taxation Cause No. 10 of 2023 that is why they appeared. The argument by Mr. Loitha that the said Taxation Cause is incompetent as the 1st and 2nd Applicants were not given a notice of mention and they did not appear on the said date does not hold water taking into consideration that when he appeared on 08/06/2023 he told the court that he was representing all the Applicants. As already propounded above the aim of serving notice to the other party is to make the other party aware of the existence of the taxation cause so that he can prepare himself for the matter. The appearance of the Applicants' advocate on the day set for mention indicated that they have the information on the existence of the Taxation Cause. It is obvious that the purported failure to serve notice did not have any impact to them, hence this omission cannot make the Application incompetent as argued by Mr. Loitha. In my view, I do not see any ’age 8 of 11 prejudice neither has it been pointed out by the counsel which has been caused by the said failure to serve the said notice. See Samson Ngwalida vs Commissioner General TRA, Civil Appeal No. 86 of 2008 where the Court held that courts have to dispense justice without too much regard to procedural rules; and Maisha Muchunguzi vs Saab-Scania Tanzania Branch, Civil Appeal No. 41 of 1998 (unreported) where the Court of Appeal stated that the Rules are there for guidance and in certain circumstances, ..... they can be departed from. In essence procedural laws are in place to ensure certainty of procedures, which means they are certainly not simple niceties that one can opt to abide by or not, however then, they are not supposed to hold back the process of justice to avoid prejudice to the administration of justice or to avoid undue distress or embarrassment. The object of the courts is to decide the rights of the parties and not to punish them in the conduct of cases by deciding otherwise than in accordance with parties' rights as courts exist for the sake of deciding matters in controversy, not for the sake of procedures. Having said so this ground is dismissed for want of merit. / Ph^e9ofll The second issue is that the Taxation Cause No. 10 of 2023 was time- barred as the 3rd and 4th Applicants were served with notice of mention after the expiration of the 5 days contrary to the requirement of the law. Mr. Loitha argues that the notice of mention was issued after expiry of seven days on 30/05/2023. It is on the record that Taxation Cause No. 10 of 2023 was filed on 23/05/2023. It is also on the record that on the same date the notice of mention was issued. The court's record is silent on when the 3rd and 4th Applicants were served with notice of mention to enable this court to ascertain if they were served on time or not. In any case, Counsel Mr. Loitha was supposed to prove that the 3rd and 4th Applicants were indeed served on 30/05/2023 as he alleges, not earlier, not afterward. It is trite law that in civil cases he who alleges must prove. Failure to do that this court cannot rule in his favour. Having said so this Reference Application is dismissed with costs for want of merits. It is so ordered. DATED at ARUSHA this 28th day of June 2024 A. Z. Bade Judge 28/06/2024 Ruling is delivered in the presence of the parties I their counsel/representatives in chambers on the 28th day of June 2024. A. Z. BADE JUDGE 28/06/2024 Page 11 of 11