20151130 TZHC Dodoma

IN THE HIGH COURT OF TANZANIA j AT DODOMA CIVIL REFERENCE NO. 2 OF 2011 ( Arising from Misc. Civil application No. 9/2008 of the High court of Tanzania at Dodoma Before the Hon. R. I. Rutta Taxing Master) MOHAMED OMARY BADUEL ...............•...........•........APPLICANT VERSUS SAID R. GWAZEE & 2 OTHERS .............................. RESPONDENT RULING 23 rd November & 30 th November,2015 MRANGO, J. This civil reference is made Under Rule 5 (1) and (2) of the Advocate Remuneration and Taxation of costs Rules, GN 515 of 1991. The applicant Mohamed Omary Baduwel is asking for the following orders: i. That, the Honourable Judge be pleased to revisit the award of costs made by the taxing master in respect of the taxation cause which are quite inadequate· in the circumstances and make - - -··-~- --·--- · - ---- - -· - --- ·--------------·-- appropriate orders. ii. Costs of this application be provided for and iii. Any other relief (s) this Honourable court deem fit to grant. 1 . - ·~:.:~_-_;;_·_·. ·-:'"·· . . ····~::-- --,:-:---· -- :.•~ ·:. i -----~ -: _--~ :;,-.; _..;. The application was supported by the affidavit of the applicant where he deponed thus: 1. I was the applicant in Misc. Civil Application No.9 of 2008 which was a taxation cause and the application herein as such conversant with the facts stated hereunder. 2. That having been heard on the said taxation cause the Hon. Taxing Master taxed the bill of costs at Tshs. 8,750/= taxing of Tshs. 923,250/= from the sum claimed which was Tshs. 932,000/=. 3. That, the amount taxed is quite inadequate regard being had to the actual costs incurred by the applicant in prosecuting the application that was withdrawn with costs to the applicant herein. 4. That, it is in the interest of justice that taxation cause be revisited. The applicant Mohamed Omary Baduwel had the service of Mr. Kalonga Learned Counsel, while the respondents Said R. Gwazee, Kasimu Hussein and Yasin Mbaga was advocated by Mr. Kuwayawaya - Learned Counsel. When he was addressing this court, Mr. Kalonga Learned Counsel fat the applicant repeated tile content of the applicant's affidavit and further submitted that the amount awarded by the Taxing Master is inadequate bearing in mind the actual costs incurred in prosecuting the case which ended in favour of the applicant as a resu1e---h-e made--apTayer·thaeth_e_a_m-ount--ofTslis. 8,750/_:_ ·whic:ff -- 2 >""::"'·-·" -- .. _- -_-:.:.:.,.::· --- -:---- •.. ·.'5,....C.."...:-::.-""&;...- ••'• (,'---..-:-•!:- was awarded is inadequate and prayed for the same to be revisited and awarded the whole amount which was claimed at a tune of Tshs. 923,000/=. On his part, Mr. Kuwayawaya Learned Counsel for the respondents submitted that the application before this court has no merit. The applicant had to lodge an appeal against the decision of the Taxing Master and he had not to make reference as he did as a result the application is misconceived. He further submitted that the applicant has failed to specify the proper amount and the reason for that amount he want the court to interfere with and grant as a result the referenE:e- ·· maEle· is- imaginative--· and not -substantiated with evidem~e and satisfy the court what he is claiming for. The application is therefore a speculative one and prayed the same to be dismissed with costs. In the rejoinder, Mr. Kalonga Leaned Counsel for the applicant insisted that the application is proper before this court and properly moved by the law and the same is not speculative neither imaginative and what he believe is that the applicant is entitled to the whole amount of Tshs. 932,000/= and not Tshs. 8,750/= of which was awarded by the Taxing Master as a result he invited this court to ente,~fere with the order oflhe Taxing Master. That is what transpired in this court in a nut shell. There is no doubt that Mr. Kuwayawaya learned counsel for the respondents challenged the reference now before this court. He submitted thaf he order of tfle Taxing Master is a"jfpealable ·heffr:e· - 3 the applicant had to lodge an appeal instead of this reference~ However in his submission he didn't point out to the law he was referring so as to support his submission. Rule (1) and (2) of the Advocates Remuneration and Taxation of costs Rules GN 515 of 1991 provides: 5(1) "Where any party objects to a decision of the Taxing officer, he may refer his objection for the decision of a Judge of the High Court. (2) The objector shall proceed by way of chamber application supported by an affidavit to be filed within 21 days after the issue of the certified copy of the officer's decision and to be served upon all other parties who were entitled to appear on such Taxation". That being the Position of law, the reference before this court is proper before the court and the submission made by Mr. Kuwayawaya Learned Counsel on this issue has no merit and the same is entirely dismissed. But, one would go further than that. My perusal of the ruling of the Taxing Officer reveal that the said ruling was delivered to the parties on 19/4/2011 and the parties were both present. However the · ·chamber-application-· in-this- reference · indicates- that it was- presented for filing on 20 th day of May 2011. This is a clear indication that it was filed after the expiring of thirty (30) days. The reference is therefore filed in this court out of the prescribed time which ought 4 - .. .. ---·..:::-::-.:c··· to have been within a period of 21 days as provided for by Rule 5 (2) of GN No.515 of 1991 cited above. Under Rule 6 (1) and (2) of the Advocates Remuneration and Taxation of costs Rules GN 515 of 1991 it was provided that: 6 Extention of time. (1) "The High Court may order extend time fixed Under Rule 5. (2) An application for such an order shall be made by chamber application gIvrng other interested parties notice in writing or in any other way as the court may direct in not less than seven clear days before the application comes up for hearing". Since the reference in time barred, as it was filed out of time and since there is no application for extension of time as provided for by Rule 6 (1) and (2) of GN 515 of 1991, the reference is hereby dismissed for being time barred with costs. I have no reason to waste time to discuss the merit of the reference. It is so ordered. f»_ _ {D.E.MRANGO) JUDGE 30/11/2015 5 . Delivered today the 30 th day of November,2015 in the presence of the applicant in person and presence of Mr. Kuwayawaya learned Counsel for the Respondent. -. t<-1' JI">, q_,r I:· ~ · '} (D.E.MRANGO) JUDGE ,~~/ \ ~ . Jr, . 30/11/2015 p,::,J• ---~~ ~· .~ ...., l~ 6 ' ... . - ' ·' . .. - . ---·--=·. --~-.:.:. .-,::..: - ..• :,;_-,~•--·'. :_-,:'=,~--~;.--.·