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IN THE HIGH COURT OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM LAND REFERENCE NO. 32840 OF 2024 {Arising from the decision in Taxation Cause No. 22698 of2024 before Hon. M.P Mrio, Taxing Officer) LAZARO MBISE................................................................... 1ST APPLICANT AISHA A. MAGANGA................................. ....2nd APPLICANT VERSUS COAST FOOD AND FARMING CO. LTD RESPONDENT RULING 10 813/03/2025 A. MSAFIRI, J: The applicant has filed this application seeking for the following orders by this court:- 1. That this Honourable court be may be pleased to revise the proceedings in Taxation Cause No. 000022698 of 2024 before Hon. M.P Urio, Taxing Officer delivered on 13/12/2024 and nullify the proceedings which were time barred and the court lackedjurisdiction to entertain them in absence of leave to be filed out of time and quash the decision of the Taxing Officer arising there from and set aside the orders thereto. 2. That this Honourable Court may be pleased to revise the decision in Taxation Cause No. 000022698 of 2024 for L I i the Taxing Officer has awarded the bill of costs at the high-level contrary to the law. 3. Costs of this application. The application was filed pursuant to Order 7(1) of the Advocates Remuneration Order 2015 and was supported by an affidavit of Benedict Bahati Bagiliye, Advocate of the applicants. The respondent though had representation of Ms Juliana Mumburi, learned Advocate, for unknown reasons failed to file a counter affidavit despite the order of the court requiring the counter affidavit to be filed by 19/02/2025. By 13/03/2025 when the matter was set for mention for necessary orders, the applicant had not yet filed her counter affidavit. In the circumstances, the court ordered the application to proceed with the hearing but since the respondent has not filed a counter affidavit, she had no right to address on the facts and evidence adduced in the affidavit but to address the court only on points of law if any. The hearing proceeded by way of written submission and the submission in chief by the applicant was drawn and filed by Mr Benedict Bagiliye, counsel for the applicants. In the submission, Mr Bagiliye adopted the contents of the affidavit in support of the application. He said that the applicants were the appellants in Land Appeal No. 28044 of 2023 before this court where they lost the 2 appeal with costs on 28/6/2024. That following that, the respondent herein prepared Taxation cause which was filed on 11/9/2024 claiming a total sum of TZS 5,670,000/=. That, during the hearing of the said Taxation cause, the counsel for the applicants raised an objection that the Bill of costs is bad in law for having been filed out of time, thus it was time barred and should be dismissed with costs. The counsel for the applicants said further that, despite that point of objection being made clear to the Taxing Officer, the same did not comment anything on the point of objection and that, that point of objection was ignored by the Taxing Officer and left unattended. Mr Bagiliye pointed that, it is a settled law that courts are bound to ascertain whether any matter before it is within time and even where the issue of time limit has not been raised by the parties, then the court is duty bound to raise the said issue suo motu. Mr Bagiliye told the court that Order 4 of the Advocates Remuneration Order, 2015 provides that a decree holder may lodge an application for taxation within sixty days from the date of awarding the costs. That, since the award of the costs was issued on 28/6/2024, the 60 days within which the applicant was to lodge the bill of costs ended on 27/8/2024. Thus, filing the bill of costs on 11/9/2024 without leave to file the same out of 3 time rendered the application for bill of costs fatally defective for being time barred. That, the bill of costs being filed out of time, then the Taxing Officer ought to dismiss the bill of costs for being time barred as provided for under Section 3 of the Law of Limitation Act, Cap R.E 2019. Mr Bagiliye prayed that this court allows the instant application and have Taxation Cause No. 22698 of 2024 dismissed as the Taxing Officer had no jurisdiction to determine the bill of costs which was filed out of time. On 13/3/2025, the counsel for the respondent Ms Juliana Mumburi appeared in court and addressed it on points of law. She submitted on the point of law that the counsel for the applicant has raised a point of law that the application for taxation was out of timeShe argued that the application was not out of time considering the provisions of Section 19 of the Law of Limitation Act which provide for exclusion of certain period of time. She said that the proceedings were obtained on 12/7/2024. That, counting 60 days from the date the proceedings were obtained, the application for Bill of Costs was filed within time. In addition, Ms Mumburi pointed that the Application for Bill of costs are not listed in the First Schedule of the Law of Limitation Act. iI 4 On response, Mr Bagiliye submitted that Section 19 (2) of the Law of Limitation Act, provides for exclusion of time on appeal matters which need the attachment of the judgment and decree and not proceedings. He asserted that the judgment was issued on 28/6/2024 and the decree was extracted on 05/7/2024. Therefore, the application for taxation was out of time. Having gone through the proceedings and the ruling of the taxation officer, it is clear that Taxation Cause No. 22698 of 2024 was filed in this court on 11/9/2024. Meanwhile the Land Appeal No. 28044 of 2023 by which the taxation cause originates ended on 28/6/2024 when the judgment was delivered and the appeal filed by now the applicants was dismissed with costs. Following the order of dismissal with costs, the respondent through her advocate filed for bill of costs through Taxation Cause No. 28044 of 2024 on 11/9/2024. The application for taxation was to be filed within 60 days from the date of the decision/ order of the award. This is provided under Order 4 of the Advocates Remuneration Order,2015, G.N. 263 of 2015. It provide thus:- 5 4./ decree holder may, within sixty days from the date of an order awarding costs, lodge an application for taxation by filing a bill of costs prepared in a manner provided for under Order 55. As per the proceedings, the Taxation Cause was argued by the way of written submissions. In the reply submissions, the then respondents being represented by Mr Bagiliye, raised in their written submission, the fact that the application for taxation was filed out of time without leave of the court for extension of time. Surprisingly, the Taxing Officer Hon. Mrio, DR acknowledged the point of objection raised by Mr Bagiliye in the submission and then instead of deliberating it or summoning the parties to address on this point of law, went on to determine the application on merit instead of determining first the point of objection. It is trite law that whenever a point of objection is raised, it has to be disposed of first before moving on to determine the matter on merit or moving to another stage of proceedings. In the application for taxation, it was the duty of the Taxing Officer to summon the parties to address her on this point of law on time limitation before going on determining the application on merit. Failure to do that was a gross error on the part of Taxing Officer. 6 The cited law is clear that the application for taxation has to be lodged within 60 days from the date of the judgment and decree awarding costs was delivered. Having found that, I hereby nullify and set aside the ruling and drawn order of the Taxing Officer issued in Taxation Cause No. 22698 of 2024. I order that the Taxing Officer in Taxation Cause No. 22698 of 2024 should re-hear and consider the objection raised by the then respondents about the issue of time limit and determine it accordingly. The case file is remitted for that purpose. The application is allowed. I issue no order as to the costs. A. MSAFIRI JUDGE 13/03/2025 7