Juma Songolo v Nhandi Masage Ruling

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (SHINYANGA SUB-REGISTRY) AT SHINYANGA TAXATION REFFERENCE NO. 20245231000012023 (Arising from the ruling of Taxation Cause No. 06 & 07/2023 (W.S. Ng’humbu- DR) Shinyanga High Court from Land Appeal No. 90/2021 of Shinyanga High Court) JUMA SONGOLO @ JUMA HAMISI ………………………….….……. APPLICANT VERSUS NHANDI MASAGE………………………………………….…..……1ST RESPONDENT FATUMA YUSUFU ALLY………………………………….………...2 ND RESPONDENT RULING Date of Last Order: 03.09.2024 Date of Ruling: 18.10.2024 MWAKAHESYA, J.: This is a taxation reference brought by the applicant, Juma Songolo @ Juma Hamisi, against the respondents. It has been brought by way chamber summons under Order 7(1) and (2) of the Advocates Remuneration Order, 2015 and is supported by the affidavit of the applicant. The respondents, resisting the application have filed a counter affidavit sworn by one Frank Samwel who has also been engaged as legal counsel for this matter. The brief background to this matter is that the parties were at loggerheads before this court in Land Appeal No. 90 of 2021 (the land 1 appeal), the applicant being the appellant. The land appeal was decided in the respondents’ favor thus, prompting the applicant to file a notice of appeal to the Court of Appeal. This was on 04.09.2023. The applicant also filed an application for leave to appeal to the Court of Appeal. Since the respondents were duly awarded their costs in the land appeal their bill of costs (Bill of Cost No. 6&7 of 2023) were filed before Hon. Ng’humbu – Deputy Registrar who taxed the same to the tune of TZS 1,700,000/= and TZS 430,000/= to the second and first respondents, respectively. Aggrieved, the applicant has filed the present application seeking the following orders: 1. That, the honorable court be pleased to struck out (sic) the order for paying taxation to the respondent (sic), ordered in Taxation Cause No. 6&7/2023; 2. Costs of this application; and 3. Any other relief that this honourable High Court deems fit to grant. At the hearing of the application the applicant appeared in person unrepresented while both respondents enjoyed the services of Mr. Frank Samwel, learned advocate. In support of his application, the applicant prayed to adopt his affidavit and for the same to form part of his submission. He went on to submit that he objects paying costs in the land appeal because he had 2 already filed a notice of appeal to the Court of Appeal. He elaborated that, if he loses in the Court of Appeal then he will be ready to pay the respondents the costs. He prayed for his application to be allowed. In reply, Mr. Frank Samwel, learned advocate adopted his affidavit and prayed for the same to form part of his submission. He then went on to elaborate that, in essence the applicant is not contesting the taxed amount, what he is contesting is the payment of the costs while he has not been given audience at the Court of Appeal. The learned advocate was of the view that, the applicant should have waited until the respondents had filed an application for execution of taxation of which they have no intention of doing at the moment because they know the intended appeal might be decided in the applicant’s favor and revoke the costs granted by the High Court. He submitted further that, the position of the law is that the applicants were supposed to make an application for taxation within 60 days from the date of the decision which awarded costs, this is per order 4 of the Advocates Remuneration Order, 2015, and doing otherwise would make them be time barred. The learned advocate rounded off his submission by submitting that, this court should give an order for them not to enforce the order for taxation until the Court of Appeal decides the intended appeal. But 3 not for the court to strike out Taxation Cause No. 6 & 7 of 2023. He then prayed that the application be denied with costs. The applicant had nothing to add in rejoinder. The issue of whether the costs of the respondents should be taxed or else, pending the intended appeal of the applicant, was not raised by the applicant for the first time in the present reference. It was also raised during the application for taxation of bill of costs No. 6&7 of 2023 before the Hon. Deputy Registrar. At pages 6 and 7 of his ruling the Hon. DR had this to say: “On the issue as to whether or not a lodging of an application for taxation of a bill of costs is barred by an appeal against a judgement, ruling or order in which the order awarding the costs is made, I must confess that I know of no law which bars an application for taxation of bill of costs on the reasons that there is a pending appeal against an order awarding the costs… An application for taxation of bill of costs is aimed at only ascertaining the actual amount of costs awarded in the order, its determination has got no harm on any of the parties to an appeal against the order of costs. A party is only likely to suffer at a stage of execution of the determined amount of costs and the party may apply for a stay of execution of the determined amount of costs pending a determination of the appeal...” As correctly pointed out by the learned counsel for the respondents, applications for taxation are required to be lodged within sixty days from the date of an order awarding costs (order 4 of the 4 Advocates Remuneration Order, 2015). If indeed had the respondents hesitated to file their respective applications they would have been time barred. I also join hands with the Hon. DR when he stated that during the execution of the determined amount the applicant may apply for stay of execution pending the determination of the intended appeal to the Court of Appeal. Thus, this application seems misconceived. I politely decline the offer of the counsel for the respondents who suggested that I give an order for them not to enforce the order for taxation until the Court of Appeal decides the intended appeal as I see no legal basis for doing that, coupled with the fact that the applicant still has the remedy that was suggested by the Hon. DR. In the end I find that this application lacks merit and I accordingly dismiss it. Lest I further complicate matters, I make no order for costs. It is so ordered. N.L. MWAKAHESYA JUDGE 18/10/2024 5