mohamed pachanja 3 others versufrancis chagula as an attorney of magret koshumamagret mazulas 2023 tzhclandd 16851 31 august 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (LAND DIVISION) AT DAR ES SALAAM REFERENCE N0.23 OF 2023 (Originating from Biii ofCosts No.38 of2022) MOHAMED PACHANJA APPLICANT JOYCE MILINGA (Adminstratix of the Estate of HILDA MAZENGO) 2"*^ APPLICANT PAMELA JENGA 3^^ APPLICANT JOYCE MILINGA 4™ APPLICANT VERSUS FRANCIS CHAGULA (As an Attorney of MAGRET KOSHUMA/MAGRET MAZULA) RESPONDENT EX-PARTE RU LING Date ofLast Order:11.072023 Date ofRuling: 31.07.2023 T. N. MWENEGOHA,J. The applicant brought the Application at hand challenging the Ruling of Hon. C. M. Kisongp,Taxing Officer, vide Bill of Costs No.38 of 2022, dated 20^*^ December, 2022. The Ruling was in respect of two preliminary objections, raised by the respondent counsel that, the Application for Bill of Costs was time barred and further that, the same was incompetent for failure to be attached with a copy of Judgment and Decree. The Taxing officer, after hearing the arguments of the parties with regard to the objections raised, sustained the objection on time limitation and ruled that, the Application before her was time bared. The same was dismissed, hence the instant Application was filed by him. In his written submissions, the counsel for the applicants, Mr. Frank Chundu Insisted that, the Application was filed within time through an electronic filing system. That was on the 22"^ of February 2023. That, according to Rule 21(1)of the Judicature and Application of Laws (Electronic Filing) Rules, GN No. 148 of 2018, it is provided that, a document is considered to have been filed if it is submitted through the electronic filing system before midnight on the date it is submitted, unless it is rejected or there is a specific time set by the Court. He went further to argue that, it was wrong for the Taxing Officer to request proof that the case was filed electronically on the 22"^ of February 2023. It is because she was dealing with a preliminary objection. This was an error on part of the trial Taxing Officer. He cited the case of National Microfinance Bank(NMB)Pic versus Levison Yohana, Reference No.3 of 2021, High Court of Tanzania at Iringa,(unreported). In reply. Advocate Stella Simkoko for the respondent insisted that, it was their argument during the hearing of the preliminary objection that, the applicants were supposed to attach a printout with their Application, so as to inform the Taxing officer that the Application was filed within time. It was not a duty of a Taxing officer to go back into the JSDS and verify the information provided by the applicants' counsel. Therefore, the decision of the Taxing Officer to rule that, there was no document attached to prove the filling of the said Application within time electronically, was not erroneous, because the said document ought to have been annexed. To annex such document at this stage (annexure M-3)is an afterthought. I have considered the submissions of the counsei for the parties. Aiso, the affidavit and counter affidavit fiied by the appiicants and respondent respectively. The issue for determination is whether the Appiication has merits or not. In my view, looking piainly at the arguments by the counsei for the appiicants, he seems to take a direction that, the Taxing officer requested evidence in deciding the merit or otherwise of the objection before her. That, it was totaiiy wrong. She was supposed to overrule the said objection as it needed evidence, as done in National Microfinance Bank(NMB)Pic versus Levison Yohana,(supra). I agree that preliminary objection shouid not attract evidence. But the circumstance of this case is different. The question is, how wiil the Court satisfy itseif if the Application was filed within time under the circumstances iike the one faced the trial Taxing Officer in the Biil of Costs No.38 of 2022. If the appiicants'counsei tried to think from this premises, he could have understood that, the Taxing officer needed the said document so that the Court can take judicial notice of facts claimed by the applicants. This was only a matter of convenience. Not at ail a need for evidence, for the purposes of proving the existence or nonexistence of such facts. Therefore, the arguments by counsei for the applicant as far as the findings of the Taxing Officer are concerned, are unfounded. Besides, we have a number of authorities, decided by this Court which have resolved the issue as to when exactly is a person considered to have fiied a document in Court. We have been insisting that, electronic filling 3 does not do away with the requirement of payment of Court fees. Hence, this Court in many occasions, it has emphasised that, the date of filing a document in Court is a day of paying Court fees and not receiving of documents, see Matoto Matoto versus Makuru Irega, Misc. Land Appeal No.08 of 2020, High Court of Tanzania at Musoma, John Chug versus Anthony Sizy (1992) TLR and also the case of Mustapha Boay Akunaay versus Mosses Meimar (as Legal Adminstrator of Lucia Letroviki Laizer) & 2 Others, Land Reference No. 06 of 2020, High Court of Tanzania at Arusha, (unreported). Based on the listed authorities above, I find nothing to fault the findings of the Taxing Officer. She was indeed very right to consider, the date of filling the case in question (Bill of Costs No.38 of 2022) is that found in the exchequer receipt, that is the day of March, 2022. Therefore, I find this Application be devoid of merits. Consequently, the Application Is dismissed with costs. The decision of the Taxing Officer is upheld, so are the orders that followed. It is so ordered. T. N.>IWENEGOHA AM. -f 1^/ JUDGE V. 1 31/08/2023 w\m.