CIVIL REFERENCE NO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA [IN THE SUB-REGISTRY OF ARUSHA]

AT ARUSHA CIVIL REFERENCE NO. 06 OF 2023 (C/F Taxation Cause No. 07 o f2023 Resident Magistrate Court o fArusha) M/S WULKAN ENGINEERING LIMITED....................................... APPLICANT

VERSUS M/S LODHIA PLASTIC INDUSTRIES LTD................................. RESPONDENT

RULING 07th February & 27th March 2024 TIGANGA, J. The Applicant in this application moved this court under Order 7(1) and (2) of the Advocate Remuneration Order Government Notice No. 264 of 2015 and any other enabling provision of the law. The order sought in this application is for this court to order that the order by the Taxing Officer strucking out Taxation Cause No. 07 of 2023 be set aside and the Taxation Cause is restored. The application was supported by the affidavit sworn by the counsel for the applicant Mr. Lengai Nelson Merinyo in which the reasons for the application were given. In his view, the taxing officer has no power to strike out the taxation cause for want of prosecution. The application was opposed by the respondent who filed the counter affidavit made Mr. Evaison E. Maro an Advocate, who noted most of the facts but in the end deposed that the application for reference is misconceived in that the learned resident magistrate made no decision or at all. The application was argued by way of written submissions. In the submission in chief in support of the application, the Counsel for the applicant submitted that Order 68 of the Advocates Remuneration Order, 2015 prohibits the Taxation Officer from striking out Taxation Cause which is set for hearing. According to him, what the taxing master could do legally is to proceed and tax the Bill of Costs in the

absence of the parties. He also supported that position with the decision in the case of Salum Suleiman Ally vs Diamond Trust Bank Tanzania Ltd, Reference No. 07 of 2021, Mkeha J, in which it was held inter alia that, "I am mindful that in taxation causes the Taxing Officer can proceed to tax a B ill o f Costs even in the absence o f both parties (paragraph 68 o f the Advocate Remunerations Order). As such and in terms o f submission by Mr. Lamwai for the applicant, when a taxation cause is struck out or dismissed for want o f prosecution; it becomes a matter o f breach o f taxation principle for which a reference can be preferred” In his further view, the act of the taxing officer of striking out the taxation cause was against both the statutory and case law as the taxing officer was supposed to tax the bill even in the absence of the parties. He in the end asked for this court to allow the application for reference with costs. In the reply submission filed by the respondent, Mr. Abdallah Issa Ally, counsel for the Applicant, submitted that he reminded the court of the principle that a party may approach this court by way of reference only when he is aggrieved by the decision of the Taxing Officer as provided by Order 7 of the Advocates Remunerations Order, GN. No. 264 of 2015. He supported that stand with the decision of DRCT Trading Company Limited vs Mexon's Investiment

Limited, Misc. Commercial Application No. 190 of 2012. In his view, looking at the nature of the application at hand, the applicant was supposed to demonstrate two things, one, there must exist the decision to be challenged, and two, that the applicant had genuine reasons that prevented him from appearing on the date when the application was scheduled to be heard. He said throughout the affidavit filed in support of the application nothing was said about the reasons for the nonappearance of the applicant on the hearing date nor that the order striking out the application qualifies to be the decision to be challenged under Order 7(1) and (2) of GN. No. 264 of 2015. He supported that position by the decision in the case of Benjamini Mwakyala vs Geofrey A. Ndalanda, Land Reference No. 6 of 2020) [2021] TZHC 9407 in which it was held that an order dismissing the Bill of Cost for want of prosecution should be challenged not by reference but borrowing leaf from the Civil Procedure Code Cap.33 R.E 2019, the same was supposed to be challenged by first applying setting aside the order dismissing the application at hand. Firoz Haiderralij Essa and two others vs Diamond Trust Bank (Kenya) Co. Ltd, Commercial Reference No. 07 of 2023 HC, DSM. Regarding the duty to advance a reason for nonappearance, the same was well discussed in the case of Phares Wambura & Others vs Tanzania Electric

Supply Co. Ltd, Civil Application No. 186 2016 [2020] TZCA 1742 in which it was held, that the applicant should have shown he was prevented with the sufficient from appearing when the application was called for hearing. He also cited the case of Jamal S. Mkumba and Abdalla Issa Namangu & 359 Others vs Attorney General, Civil Application No. 240 of 2019 - CAT, which provided in the same manner. In rejoinder submission, he submitted that the provision of Order 68 was quoted out of context as there was no reason to argue the reasons of delay while he was challenging the decision because the taxing officer was not supposed to struck out the Bill of Costs. He said the issue raised in the reply was raised and dealt with in the preliminary objection. In his view, since the law allows the taxing officer to proceed with taxation exparte in the absence of parties and their advocates the respondent Advocate was supposed to cite the law which allowed the taxing officer to struck out the taxation. He said in the absence of the law, the authorities in the cases of Benjamini Mwakyala vs Geofrey A. Ndalanda and Phares Wambura & Others vs Tanzania Electric Supply Co. Ltd, are irrelevant because there is no dismissal for want of prosecution. From what was submitted the question remains whether it is illegal both substantively and procedurally for the taxing officer to struck out the application

for want of prosecution. Arguing in favour of the application, the counsel for the applicant argued that striking out the taxation cause is prohibited by the provision of paragraph 68 of the Advocate Remuneration order. To appreciate what the said paragraph provides I will reproduce it in extenso as follows; "68. The taxing officer shall have power to proceed to taxation ex parte in default o f the appearance o f either or both parties or their advocatesand to lim it or extend the time for any proceeding before him, and for proper cause to adjourn the hearing o f any taxation from time to time." Reading the same between the lines, I find it to be one of the provisions in the Order which provided on how appearance and non-appearance of the parties in taxation should be treated. The other provision that provides the appearance of the parties is Order 11 of the Order which provides.

11. Where an advocate who has been served with a notice to appear for taxation- (a) fails to appear to appear on the date and at the time fixed for taxation or on any date and time to which such taxation is adjourned; (b) delays or impedes the taxation; or (c) puts any other party to any unnecessary or improper expense relating to such taxation shall, the Taxing officer shall issue an order forfeiting the fees entitled to the advocate for drawing the b ill o f costs and attending taxation or for paying for any unnecessary or improper expense to which such advocate caused the other party to incur and he may proceed ex parte with such taxation. Order 11 provides for what the taxing officer should do in case where an advocate who has been served with a notice to appear for taxation fails to appear on the date and at the time fixed for taxation or on any date and time to which such taxation is adjourned; order 68. Provide for what the taxing officer shall do in default of the appearance of either or both parties or their advocates. Both provisions do not provide for either dismissal of the Bill of Costs for want of prosecution or striking it out for a similar cause. What they provide for the taxing officer either to proceed with taxation in the absence of the parties or adjourn the said taxation for hearing from time to time. Therefore, I am entirely in agreement that the act of

the taxing officer to struck out the Bill of Cost was not supported by any law, it was ultra vires. I entirely agree with the counsel for the applicant that the authorities in the cases of Benjamini Mwakyala vs Geofrey A. Ndalanda and Phares Wambura & Others vs Tanzania Electric Supply Co. Ltd, are irrelevant and distinguishable for they were cited out of context because the matter at hand does not relate to dismissal for want of prosecution. It should also be noted that under Order 7 of the Order, this court can be excessed only by reference. The order trucking out the Bill of Costs is the decision within the meaning of the law as it terminates the Bill of Costs, it is thus amenable for reference under Order 7 of the Order. That said, I find merit in the application for reference at hand, I allow it based on the reasons given hereinabove. Consequently, the matter is remitted back to the taxing officer to be dealt with by the taxing officer in accordance with the law. It is accordingly ordered. DATED and DELIVERED at ARUSHA on 27th March 2024.