masaku chibuga vs care tanzania 2007 tzhc 378 18 october 2007

IN THE DISTRICT REGISTRY AT MWANZA HC.CIVIL REFERENCE NO.Ol OF 2006 (Arising from Misc. Civ. Appeal No.4 o f1999, originating from Mwanza D/Court Employment Cause No.33/1998) MASAKU CHIBUGA.............................................APPLICANT Versus CARE TANZANIA..............................................RESPONDENT 24/7/2007 & 18/10/2007 RULING RWEYEMAMU, J: This is a reference from the decision of Hon. Kahyoza, District Registrar - Mwanza as a Taxing Master in Misc. Civil Appeal 4/1999. Mr. Masaku Chibuga the applicant/decree holder has two complaints against the decision. One, failure by Taxing Master to tax costs incurred by the applicant in the subordinate court - which he had included in his bill of costs. Two, that the Taxing Master having failed to reverse the District Court (DC) decision which had denied costs to the applicant/decree holder, erred in law in failing to refer that question to a Judge for decision or direction. The background to this reference is as follows:- Masaku filed Employment Cause No.33/1998 in Mwanza District Court (DC). It was struck out, an order Masaku successfully appealed in He. Misc. Civil Appeal 4/1999. In that appeal, the HC ordered restoration of civil case 33/1998 and that the same be heard by a Resident Magistrate. It would appear that thereafter, Masaku filed a bill of costs, for costs incurred in the DC but the same was dismissed by the SRM in a ruling dated 11/6/2005. Then Masaku filed a bill of costs in the HC comprising of 57 items, of which item 1 - 3 4 and item 43 - 57 were part of the bill already filed and dismissed in the DC in a ruling referred to. The DR/Taxing Master (TM) taxed the bill excluding those items filed in the DC. Those excluded items are subject matter of this reference. Mr. Masaku submits that the TM should have taxed the same or referred the matter to a Judge for direction. The issue for decision in this reference is whether or not the DR/TM should have taxed costs incurred by Mr. Masaku in the DC. In my opinion, the TM acted properly. Had the decree holder filed the whole bill in the HC, then the TM would have had jurisdiction to tax the bill altogether. Since the decree holder chose to first file the bill in the DC where the same was dismissed as already stated, the only cause of action open to Masaku was to appeal that DC ruling of 11/6/2005. A cause of action he may still take provided he follows necessary procedures. At this stage, I do not find it opportune to comment on the DC decision that costs are not awardable in an employment cause. In brief, this reference is dismissed with costs. At Mwanza 18/10/2007 Delivered in the presence of the applicant and in the absence of the Respondent. Right of Appeal Explained.