MUNISI HAMISI MPIGAHODI TAXATION REFFERENCE

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB – REGISTRY OF SHINYANGA AT SHINYANGA CIVIL REFERENCE REF. NO. 202408271000021041 MUNISI HAMISI MPIGAHODI ....................................... APPLICANT VERSUS JOSEPH NKILIJIWA…………….……………..………… 1st RESPONDENT AIRTEL TANZANIA PUBLIC LIMITED COMPANY…. 2nd RESPONDENT MWINULA HAMISI MPIGAHODI …………………….. 3rd RESPONDENT PILI CONSTANTINE ……………………………….……. 4th RESPONDENT MIC TANZANIA LIMITED …………………………...…. 5th RESPONDENT HTT INFRANCO LIMITED …………………………..…. 6th RESPONDENT [Application from the decision of the Taxing Master for the High Court, Shinyanga Sub - Registry] (Hon. Warsha Ngh’umbu DR.) dated the 9th day of August, 2024 in Taxation Cause No. 3 of 2023 ----------- RULING 14th November & 12th December, 2024. S.M. KULITA, J. This is a civil reference case originating from the Taxation Cause No. 3 of 2023. It has been filed by way of chamber summons under Order 7(1) and 1 (2) of the Advocates Remuneration Order, 2015. The Applicant herein seeks for this Court to examine by reference, the decision of Taxing Master, dated 9th August, 2024 in the said Taxation Cause No. 3 of 2023, to see its legality and fairness. The application is supported with an affidavit sworn by the applicant’s Advocate, Mr. Stephen Charles Kaswahili, on the 24th day of August, 2024. In a nut shell, the records provide that, the applicant herein filed an application for Bill of Costs (Taxation Cause) basing on order of this court in the Land Appeal No. 57 of 2022 dated 23rd June, 2023 wherein the Applicant was awarded costs as against the Respondents. That the applicant lodged the Bill of Costs which was registered as the Taxation Cause No. 4 of 2023 claiming for a total sum of Tsh. 2,805,000/= against the 3rd, 4th, 5th and 6th Respondents. That was so done, as the 1st and 2nd Respondents had already settled their dispute with the Applicant. During trial for the said application for Bill of Costs (Taxation Cause) before the Taxing Master, Advocate for the Respondent successfully raised the Preliminary Objection that the Taxation Cause was lodged out of time. Aggrieved with the said decision, the Applicant herein lodged this Reference 2 case for rectification of errors and illegality on the face of the record in the impugned case. The matter was argued through written submissions. The Applicant complied with it. As for the opponents’ side, only the 6th Respondent complied with it. Hence, the case was ordered to proceed ex-parte against the 3rd, 4th and 5th Respondents who didn’t show up before the court inspite of being summoned. They also defaulted file counter affidavits. While the Applicant is represented by Mr. Stephen Charles Kaswahili, Advocate from KZR Law Chambers of Mwanza, the 6th Respondent is represented by Ms. Elizabeth Kifai, Advocate from MM Attorneys of Dar es Salaam. Advocate for the Applicant, Mr. Stephen Charles Kaswahili, submitted that, the Deputy Registrar who was the Taxing Officer in the Taxation Cause No. 3 of 2023 was wrong to rule out that the application for Bill of Cost was time bared. He said that, the said argument is not a pure point of law as the same needed evidential proof in order to know the date of filing, particularly the on-line filing. He further submitted that, in his analysis that led to sustain the Preliminary Objection, the Taxing Master relied on the date of payment 3 of filing fees and issuance of the exchequer receipt which are not part of the pleading. The Counsel further submitted that there is still a lacuna as to when the documents are regarded to have been filed in court, whether it is on the date of lodging it or upon payment of the filing fees. To support his argument, the counsel cited the case of CHRIS GEORGE KASASILE V. TANZANIA INSTITUTE OF EDUCATION & ATTORNEY GENERAL, Civil Application No. 775/01 of 2022 [2024] TZCA 199 (19th March 2024 TANZLII) at page 5 – 7. As well, the Counsel argued that the applicant was not served with the copy of rejoinder in the Preliminary objection that the 6th Respondent had filed. He said that, having seen it at the subsequent time he came to note the new issues of which, had he been served with it, he could have sought for leave to reply. However, he didn’t, as the ruling by the Taxing Officer was already composed. The Counsel concluded his submission by praying for the application to be allowed with costs. 4 In the reply thereto, the 6th respondent’s Counsel, Ms. Elizabeth Kifai, Advocate, submitted that the point that the application for bill of cost was time bared was a right ground of Preliminary Objection. She said that, it is the point that the court itself was in a position to notice in the record and the same does not need evidential proof as alleged by the Applicant’s Counsel. As for the issue of date on which the Taxation Cause is regarded to have been filed in court, Ms. Elizabeth Kifai, Advocate, was of the view that, the document is deemed to be filed in court when the appropriate payment of court fees is done. She said that this is the requirement of the law as per Rule 21 of the Electronic Rules, as well as Rules 3 and 5(1) of the Court Fees Rules, which mandatorily require payment of the appropriate fees. The Counsel further stated that the Electronic Rules, which came into operation later, did not revoke the Court Fees Rules, but rather provided for the procedures to be followed when the document is filed electronically. In comparing the above said position of the law and the matter at hand, the counsel submitted that the order that awarded costs in the Land Appeal No. 57 of 2022 was made on 23rd June, 2023 and the filing fee for the Bill of Costs (Taxation Cause) was paid on 30th August, 2023. Thus, the Application 5 is regarded to have been filed on that 30th August, 2023 which was the 68th day from that 23rd June, 2023, when the order for awarding costs was made. Therefore, apparently 8 (eight) days beyond the prescribed time limit of 60 (sixty) days, as per Order 4 of the Advocates Remuneration Orders, 2015, had expired. The Counsel concluded that the said Taxation Cause No. 4 of 2023 was thus hopelessly time bared, hence, the Taxing Master was right to dismiss the same. The said 6th Respondent’s Counsel further submitted that, the proof as to when the court fee was affected, of which, to her, is also regarded as the date of filing the case, is exhibited by the exchequer Receipt. To cement her argument Ms. Elizabeth Kifai, cited the case of ADAMSON MKONDYA & ANOTHER V. ANGELIKA KOKUTONA WANGA (as Administrator of the Estates of the late Stephen Angelo Rumanyika) Misc. Civil Application No. 52 of 2018, HC Bukoba District Registry. The said Counsel for the 6th Respondent concluded by praying for the application to be dismissed with costs. In rejoinder Mr. Stephen Charles Kaswahili, Advocate, reiterated what he had submitted in his in-chief submission. 6 From the above submissions, as well as upon going through the record and the pleadings, I find the issue to be determined is whether the application is meritorious. I am going to analyze it as hereunder. To start with, let me resolve Mr. Kaswahili’s argument that that the Taxing Master was wrong to entertain and accept the purported Preliminary objection that the case was time bared, while it is not a point of law. In her reply, Ms. Elizabeth Kifai resisted this ground by stating that, it is a point of law. This led me to find the interpretation as to what the point of law is. Actually, the Preliminary objection must involve pure point of law. This was also said by the Court of Appeal case, namely, MUKISA BISCUITS MANUFACTURING V. WEST END DISTRIBUTORS LTD (1969) EACA 696. In the said case, it was also held that the Preliminary objection cannot be raised for the fact which has to be ascertained or exercised in judicial discretion. As for the matter at hand, it is wrong for the Applicant’s Counsel to urge that the issue of time limit to file the impugned case was not a point of law. As rightly stated by the Respondent’s Counsel, it is a point of law. The reason behind is that the presiding officer, Taxing Master, had no judicial discretion 7 to entertain the said matter as per section 3(1) of the Law of Limitation Act [Cap 89 RE 2019] for the same being time bared. Now, turning to the issue of time limit in filing the impugned application. First of all, be it known that the only issue that the Taxing Master had relied upon in dismissing the application, as it can be so read by itself in his ruling, is that it was time bared. In it, the said Taxing Master stated that the said application was filed out of the prescribed time limit of 60 days as per Order 4 of the Advocates Remuneration Orders, [GN. No. 263 of 2015]. He clarified in his ruling that from 23rd June, 2023 when the ruling for the Land Appeal No. 57 of 2022 was delivered by Hon. Massam, J. to 30th August, 2023, when the impugned Taxation Cause was filed at High Court, it was arithmetically, 68 (sixty-eight) days, which is, apparently, 8 (eight) days beyond the prescribed time limit. That was also the submission of the Advocate of the 6th Respondent in her written submission. On the other hand, the Applicant’s counsel disputed it by submitting that, the said 30th August, 2023 was just the date for payment of filing fee, but the application had already been filed electronically since 20th August, 2023 which was the 58th day from the date of delivery of the impugned judgment, Land Appeal No. 57 of 2022 by Hon. Massam, J. on the 23rd June, 2023. 8 On those arguments, the Applicant’s counsel just alleges that, in his analysis, that led to sustain the Preliminary Objection, the Taxing Master ought to have investigated on the date that the application had been filed, rather than relying on the date that the court fee had been paid by the Applicant. He was thus of the opinion that the said Taxing Officer was wrong to dismiss the bill relying on that ground while the exchequer receipt for the payment of court fee is not part of the pleadings. My findings upon the perusal of the impugned record, particularly the Taxing Master’s ruling is that, he actually investigated the matter as a whole, that’s why he came up with the said ruling which is detailed and elaborative. The Taxing Master’s standing point, of which I concur, is that, in all cases which are subject to the payment of court fees, like the one at hand, it is mandatory for the said payment to be affected when the said case is filed, and that is where the case is regarded filed. In the electronic mode of filing cases, if the court fee is not paid for the cases which involve such payment, the case remains in the status of “pending bill” until when the required fee is paid, whereby the case subsequently changes to “registered”. 9 The record transpires that the Applicant filed the Bill of Costs before this court on 20th August, 2023 which is the 58th day from the date of judgment delivery by Hon. Massam, J. It means that, it was within the 60 days’ time limit prescribed for filing Bill of Costs (Taxation Cause) as per Order 4 of the Advocates Remuneration Orders, 2015 [GN. No. 263 of 2015]. However, the Applicant affected the court fees on the 10th day later, that is, 30th August, 2024, the 68th day from the date of judgment, while the pleadings for the Taxation Cause was already lodged in court since that 20th August, 2023. As it was rightly urged by the Taxing Officer (Deputy Registrar) in his analysis that the process of filing proceedings/matters in which payment of court fees is not required (exempted) is different from the process of filing matters in which payment of court fees is required (not exempted). While in filing the former matters the party has nothing to do with the obligation to pay the court fees imposed under the provisions of the Court Fees Rules, 2018, [GN. No. 247 of 2018], filing of the later proceedings/matters is subject to compliance with the obligation for payment of specified Court Fees. Therefore, for the matters which are subject to the payment of filing fees, admission of their documents in court do not amount to filing of the case 10 until the obligation to pay the specified court fees is discharged in accordance with the provisions of the Court Fees Rules, 2018 [GN. No. 247 of 2018]. The Applicant’s Counsel submitted that there is still a lacuna as to when the documents are said to have been lodged in court, whether it is on the date of filing the document or upon payment of the filing fees. To support his argument that, still there is a lacuna on this issue, Mr. Kaswahili cited the case of CHRIS GEORGE KASASILE V. TANZANIA INSTITUTE OF EDUCATION & ATTORNEY GENERAL, Civil Application No. 775/01 of 2022 [2024] TZCA 199 (19th March 2024 TANZLII). I can agree with it that there might be a lacuna, however, whatever it is, the doctrine of reasonability should apply. As for the matter like the one at hand, a party can be exempted from paying the court fee at the time of filing/uploading the case which is subject to the said payment, if he has been refrained to do so by the circumstances that are beyond his control, such as a network problem or unavailability of the court officer who is responsible for issuance the control number. It was stated by the Court of Appeal in the said case of CHRIS GEORGE KASASILE V. TANZANIA INSTITUTE OF EDUCATION & ATTORNEY GENERAL (supra), that sometimes the process of electronic filing involves delay in the payment of filing fees. 11 My view on this is that, even if this happens, a party who had been prevented from affecting the payment of filing fee after he had lodged the matter in court, must take prompt action to effect the payment once the problem is settled. It is not the issue of a party to decide on a day that he wishes to affect the said payment. Basically, for the cases which are subject to the court fees payments, it is the date of payment of the filing fee and not of lodging the document, which amounts to the date of filing. This was also held in the case of ADAMSON MKONDYA & ANOTHER V. ANGELIKA KOKUTONA WANGA (as Administrator of the Estates of the late Stephen Angelo Rumanyika) Misc. Civil Application No. 52 of 2018, HC Bukoba District Registry, which was cited by the Respondent’s Counsel. However, it is my considered view that, the court may allow the payment of filing fees on the subsequent date/time, for the cases that require it to be fulfilled during the filing, upon considering the circumstances of each case, as to what led to the said delay, and whether the party took prompt action to affect the said payment thereafter. As for the matter at hand, the Applicant’s Counsel has not given any reason for the applicant’s failure to affect payment of the filing fee, during or 12 immediately, after he had filed the documents for the said Bill of Cost (Taxation Cause). Hence, he cannot be considered in this exemption. This analysis is sufficient to dispose of the matter in its entirely. I thus find no need to analyze the issue of failure of the 6th Respondent to supply the Applicant with the copy of rejoinder, which was also raised by the Applicant’s Counsel in his submission. In upshot, it is vivid that the application for Bill of Costs (Taxation Cause) before the Taxing Officer (Deputy Registrar) was time bared. Thus, he was right to dismiss the same. Accordingly, I find this application unmeritorious, hence dismissed. No order as to costs. S.M. KULITA JUDGE 12/12/2024 DATED at SHINYANGA this 12th day of December, 2024. 13 S.M. KULITA JUDGE 12/12/2024 14