20120305 TZCA Arusha6

< ' ',✓ IN THE COURT OF APPEAL OF TANZANIA ATARUSHA· . ,;.'. ! . M/S SOPA MANAGEMENT LIMITED ....... :.~ ................................... APPELLANT VERSUS ' M/S TANZANIA REVENUE AUTHORITY..."..............•.........•.......... \, RESPONDENT . (Appeal from the decision of the High Court of Tanzania atArusha) il ,I' •·:,;/i ·('ChocHa, . .,,. ' ' l.) dated the 30th day of August, 2007 in ~.i-.••~ t Msc. Civii 1tS/~~~n~~: No. 9of 2006 "JUD-GMENT OF THE COURT ( 29th February & 05th March, 2012 .: . MUNUO, J.A: On the 26th September, 2,QOO~ tbe. High Court of Tanzania, Mushi J. ;~·Vff T , \·. ~~1'' ~ '. struck out· Civil Case No. 22 of 19~8 with costs for lack of jurisdiction to determine matters relating to h9tel levy, sales tax, stamp duty and car benefit imposed on the presentlli~~IL~~~;, SOPA Managemeni: Ltd. by the Tanzania Revenue Authority, . now the . -rE!spondent. ~,-. Three and a half years . ·, 1 •\\ ,J . . .f . ' ., .-~ later, the respondent decree h~1~ff\,:l~~ged a Taxation Cause for. sill· 'of . Costs totaling shillings Sl4,753,580/ \~osts of the suit '{"hich the High Court struck o·ut on the 26th September, 2000. On being served with the Bill of Costs, Mr. Maro, learned ,advocate for the appellant, filed a preliminary objection to the effect that the Taxation Cause was time barred. In his Written Sut?missjQn :in .~upport of the preliminary objection, ' . ·/ tt'.' i; ff>'' ', Mr. Maro, learned ·advocate, quoted "the learned author, B.B. Mitra on his Commentaries. On the 1963 Indian Law of Limitation Act. The Book is ; , ·.• at page 11 wherein it is stated; I• .. ' ,....... i ''an unlimited and perpetual threat· of- litigation I.. creates insecurity and uncertainty some kind of · .{' d limitation is es$ef:tia/(,c;rr:,~b(!c order. " , '•. . .. ;~ l : Learned· Counsel ·Maro also referred to McGee, Commentaries on j.; :~ . '• Limitation Periods, 2nd Edition, ,il~,/~~page 5 where the learned author refers to the poiicy and spirit behind thedimitation period thus: t· . •• I t,, / .. 2 \.... ·, ' •~ ...Arguments with· regard to the policy underlying statutes of limit~tioqt(E?II /'1,,tb three main types. The ,. i ·:·f ' .! ··. first relates to the position of the defendant It is said to be unfair that a defendant should have a . .rr{ ·, :;:t;_:.1. · .1.:·. · _ claim hanging over /t)!Jl}~~;,. ... indefinite period and it ·is this context thdt ·. >such enactments are sometimes described as ''statutes ofpeace." The '· second looks at the matter from a more objective i- point of view. It suggests that a time limit is necessary because J{itft..h th,~r1apse of time/ proof of a t 1: claim becomes more difficult documentary evidence is likely t0 have been destroyed and i/ ~ ljt · ~-- memories of witnes/Jf~J;;r/JJoe. The third relates to the conduct of the plaintiff. It being thought right that a person who does not promptly act to enforce his rights shoulcf lose them. All these .justifications have been considered by the courts. " 3 ·:i1f1r:it;i.. ,f:}JJ'ii hi:r , . 1/ fi.~~/\it I In the Written Submission on 'tttie preliminary objection, learned I advo.cate Maro also referted to item· 21/of Part III to the First Schedule to the Law of Limitation Act, 1971 which provides, ,interaUa; ''21. Application under the Civil Procedure Code, 1966, the Ma{liitra~s d.iJfts Act 1963 or other written law which no period of limitation is provided in this Act or any ot~i/ itritten law........ sixty days" . ··.,i H1;~i!'. 1J,{~'~°\'''i ."t,tf1t,. . Before us, Mr. Maro did not refer to McGee but he referred to the Indian Limitation Act by the learned authors B.B. Mitra, M. R. Malick, 20th Edition, Eastern Law House 1998 pages 10, 11, 1171 and 1183 and numerous . . other . authorities to support . ~. .. the appeal, all stressing the need to ., : . •• ' ' . -·►1 . . :, 'fit( '~!f ., comply with the prescribed Law· of Lir:n1tation. On his part, Dr. Mapunda; .=dear:ned advocate for the respondent ;:iJlJt~;, rj,. t-;t~:,, resisted the preliminary objection. tiie cohtended that the Taxation Cause was within the prescribed period of 'lirflitation under the provisions of item 20 to the First Schedule, Part III of the Law of Limitation Act, 1971, Act No. 10 which states: 4 j. .. 11 To enforce a· Judg~ent,1{{decree or. order of any court where the period of limitation is not provided for in this Act or any gt!J~r written /aw. .... 12 years." -;~~'.9~t\; i¥i~::,, • 't"' . .: . Dr. Mapt,mda submitted that th~/BIII of Costs falls under item 20 of -;, the First Schedule, Part III of the Law of Limitation Act, 1971. He stated in his Reply to Mr. Mara's Written Submission on the preliminary objection that the said objection was misconceived, novel, unprecedented and has :: no merit at all. l=he l=axation Master, Mr. ~,~~par,r, Lila, as he them was, upheld the 1.i1 )J.P' ;\ {-i;i,. , . preliminary objection giving rise to Misc~laneous Civil Cause· No. 9 of 2006 in the 1High Court of Tanzaniij ;:in which counsel for the present respondent asked the High Court to quash the Ruling of the Taxing Master and let the Taxation Cause proceed on, merit. In the Reference to the High .. Court either party stuck to their gµns: Dr. Mapunda contending that the Bill of Costs falls under item 20 to the First Schedule of the Limitatl$r(.1A<:t~ 1971 which provides a limitation $/0'' ~},,'.. 5 :~. :! j ; ,; • ~ t{f /,1:• 'lf~htf\ t~ttl.<' ' . period of 12 years while Mr. Maro irlsisl:ed that the period of limitation fbr ·'·· . applications of Bills of Costs is sixty· da,ys so the Taxation Cause in~ituted by the decree holder is time barred. Chocha, J. ruled that the Bjll of Costs falls under item 20 of the First Schedule, Part III of the Law of Limitation Act, 1971 so it is within the prescribed period of limitation of 12 years> The . ·. "~:ifir· i':r:-.. --~ learned judge .ordered that t:fte tcfxation Cause be heard on merit. Dissatisfied, learned counsel for the appellant preferred the present appeal. Mr. Maro, learned appeal· namely: · 1. That the High- Court"erred in law treating as and holding that a Bill of Costs - constitutes an -,- ..1~~ - - i:f; -·~ .. application for execLbo:nf :·' 2. That the High Court erred in law in holding that ·: i, r v•. / Taxation Cause Ne::>'.": ijf3 • ·bf 2004 was not time ·.· . . t,-. . ' barred. Hence, counsel for the appellant{urged us to quash and set aside the decision in Miscellaneous Civil Reference No .. 9 of 2006 with costs. We 6 'wish . to note here that the said . Miscellaneous Civil Reference No. 9 of 2006 ~•ri~ .~. .! ; . \{ . .-· . was instituted as Miscellaneous Civil Cause No. 9 of 2006. ; .', : .. , . ,df~- ~ -r._,. -. · In this appeal, Mr. Maro dbsery~~-;and Dr. Mapunda conceded that t; _,'':- : : there is no period of limitation for filing a Bill of Costs for Taxation and that . I ,,: such matter would fall under items 20 or 21 of the 1st First Schedule to the Limitation Act, 1971. Counsel for the appellant m:~lt~q1,tne learned judge for holding that a ,''•. ; ,,,.-:_ bill of costs is a step towards enforcement of the judgment thence the period of limitation for bills of co$ should fall under the provisions of item . ,,:.- :·, 1 .. t(. --~.~·- !\ 20 to the First Schedule Part I~i{~6f:~: law of Limitation Act No. 10 of ; ·e.• i~- , ' :. ·. 1971, which is 12 years. Mr. Maro maintained that bills of costs are ' applications for determining the costs spent in litigation so they fall under item 21 to the First Schedule III of the Law of Limitation, 1971 which is sixty days only which means the respondent's bill of costs was time barred because it was filed 3 ½, year.f:aft~"the - ... :, , :.r"!· ~ judgment awarded the same. Citing B. B. Mitra The Limitation Act 1963 12th Edition by M. R. Mallick, Calcutta new Delhi l;i11stert1 Law House page 528, counsel •...:~Y': .. ~- : · . , -~- for the appellant submitted tha~~~·.-'bi1f~<-b'f; costs is not part of the decree ~l~I •• ,, ! . •• 7 .Mti~l''f),~~,j~\:·, :j:, . ·: ,: < · which enjoys a period of limitation of .il2 years; rather a bill of costs'"is ' instituted by filing application are and applications not specifically provided for under the Law of Limitation, such ·application falls under the provisions ·I.· of item 21 of the First Schedule to the Limitation Act, 1971 which is 21 The issue is whether the Bill of Costs in dispute is time barred. This matter need not detairt;us .. While it is true that a bill of costs is i::Y r 1->.i.i·· ·r linked to the decree to the exte~f'tha~1ffbie- . :;,,.. . -··. . ; . decree holder would· ·be entitled _ to costs of the suit if there is no order,:for withholding costs, a bill of costs is instituted separately as an application to determine the costs of litigation on the part of the successful party: · . Because the Law of Limitation Act, ' 1971-does not provide a period of limitation for lodging a bill of costs, such application would in law fall /tm~r i~e,;ti~,21 to the First Sctiedule Part III of .' the Law of Limitation Act, 1971, which states inter-alia: ·•21. Application -unde,r ,the! Civil Procedure Code, : --~~~'; ~---1: ,. •·< 1 1966, the Magistraf:~~ 0f/ffiit",Act, 1963 or other f:: • d· written law of which no, period of limitation is I, . provided in this Act or any other written law ....._.,,,,.. ~r~-' .., uay. ,, 8 ' 'J-~J.:\i,;-·' ' ~ ' i,ri> t-. ~?~i'.~ :'. ii • In view of the clear provisiqns. \of item 21, the learned judge erroneously reversed the decision of.tfi)e Taxing Master. Hence, we quash and set aside the decision of the High Court and hereby restore the decision of the Taxing Master. We ar~· satisfied, therefore, that under item 21 _of the First Schedule of the Lay\f ,of Li;'mitation Act, 1971, the _Bill of Costs , t~th ~ . fJ/.. · . presented in Civil Cause No. 13/2004'.-arising from No. 22 of 1998 was time barred. i l .· ~i: ; J \, . . ,:1}' ...... q' . ~:.I .. -lf;i 1;)1' t_ 'f1:;t :. In the result the appeal has mJri~~ahd is hereby allowed with costs. DATED at Arusha this 5th day of March, 2012. E. N. MUNUO JUSTICE OF·APPEAL W. S. MANDIA JUSTICE,OF APPEAL 9 I' ' o) 'l.1 : .,..' +· ....:~·rt~ ...