khatibu omary dangi vs ally masoud and others 2020 tzhclandd 85 20 april 2020

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND APPEAL N0.194 OF 2019 (Originating from Tenneke District Land and Housing Tribunal atTemeke in Land Application No.335 of 20X8 and Misc. Application No.224 of 2017) KHATIBU OMARY DANGI APPELLANT VERSUS ALLY MASOUD........ ,1st RESPONDENT MACHOWIA MALISA ,2nd RESPONDENT MBARAKA MIRAJI.... 3rd RESPONDENT Date of Last Order: 18.02.2020 Date of Ruling: 20.04.2020 JUDGMENT V.L. MAKANI, J This appeal originated from the ruling in Misc. Application No.335 of 2018 in Temeke District Land and Housing Tribunal (the Tribunal). The appellant filed bill of costs claiming TZS 47,750,800/= as cost arising out of Misc. Application No. 224 of 2017. The Taxing Officer taxed the costs at TZS 1,094,000/=. Dissatisfied with the said decision the appellant has appealed to this court with four grounds of appeal reproduced herein below: 1. That, the District Land and Housing Tribunal for Temeke (the Tribunal) erred in law and fact for unjust reducing the cost of demolishing and eviction on item 25 from Tshs. 1,800,000/- to Tsh 1,000,000/- despite having supported by the receipt of Tsh 1800,000/- from appointed Court Broker without giving legal reasoning. 2. That the Tribunal erred in law and fact for failure to take into consideration the cost incurred by the applicant as for item 32 and item 34 without giving justification. 3. That the Tribunal erred in law and fact for ignoring to take into account the cost incurred by the applicant as for item 1 to 31 without giving legal reasoning. 4. That the Tribunal erred in law and fact by taking into consideration cost incurred by the applicant which was non- existence in the course of attending Misc. Application No.224 of 2017 and ignore the actual cost submitted in the bill of costs No.335 of 2018. The Appeal was disposed by way of written submissions whereas the appellant submissions was drawn by the appellant in person while Ms. Shamimu Kikoti, Advocate drew and filed submissions on behalf of the respondents. In the course of preparing the ruling and while perusing the record from the Tribunal file, I discovered as have stated above, the appellant has filed a Memorandum of Appeal under Order XXXIX, Rule (1) and (2) of The Civil Procedure Code, CAP 33, R.E 2019 (the CPC). However, this being Taxation of Bill of Costs, the appellant ought to have preferred a reference as provided under Order 7 of Advocates Remuneration Order, 2015 (GN No.264 of 2015) which reads as follows: 7. (1) Any party aggrieved by a decision of the Taxing officer, may file reference to a judge of the High Court. (2) A reference under order (t), shall be instituted by way of chamber summons 2 supported by dn dffiddvit dnd be filed within 21 days o f from the ddte o f the decision. (3) N/A (4) N/A The law is settled that the court has to properly be moved according to the appropriate procedure and correct provisions of the law. Failure to do so renders an appeal incompetent. The present appeal has wrongly being preferred to this court by way of an appeal instead of a reference by filing a Memorandum of Appeal under Order XXXIX Rule (1) and (2) of the CPC instead of a Chamber Summons under Order 7 of Advocates Remuneration Order, 2015 (GN No.264 of 2015). In essence there is nothing before this court, and consequently the omission makes the appeal incompetent and I hold as such. The finding above goes to the root of the matter because once the appeal is found incompetent nothing else related to it can stand. In the premise I find no need to delve on the submissions filed as the appeal itself is incompetent. For the foregoing reasons, the appeal is hereby struck out for being incompetent. There shall be no orders as to costs as this issue has been raised by the court suo mottu. It is so ordered. V.L. MAIOVNI JUDGE 20/04/2020 3