20140212 TZCA Dar es Salaam

IN THE COURT OF APPEAL OF TANZANIA AT DAR ES SALAAM (CORAM: KIMARO, J. A., MUSSA, J. A., And MMILLA, J.A.) TAX REFERENCE NO. 1 OF 2011 MUTAMWEGA BHATT MUGAYWA ........................................... APP1:ICANT VERSUS \ ... ·-··-- CHARLES MUGUTA KAJEGE .............................................. RESPONDENT (Reference from the Ruling of a single Judge of the Court of Appeal of Tanzania at Dar es Salaam) {MANDIA, J.A.) I th Dated the 10 ;~Y of May, 2~~\ 0 0 tl Tax Reference No. 5 of 2~~0-. \ i RULING 0F THE COU~T 7 th February & 17 February,2014 MMILLA, J.A.: After Civil Appeal No. 39 of 2004 came to conclusion the decree holder, who is the respondent in this reference, one Charles Muguta Kajege successfully defended, through Mr. Michael Ngalo, learned advocate, a bill of costs he had filed in this Court. He was awarded a total of shs 48,300,000/= out of shs 79,437,600/= he had claimed. Aggrieved by the decision of the taxing officer, he instituted Taxation Reference No. 5 of 2010 which ·was handled by a. single judge. After carefully considering the submissions of the parties, the learned single judge of this Court (Mandia, J .A.) adjusted 8 items 1 9ut of 17 of them bringing the taxed bill of costs to shs 43,370,000/=. Undeterred, the applicant filed the present reference in which he is seeking this Court's indulgence to vary or reverse that decision. The applicant was formerly being represented by learned counsel Mr. Israel Magesa (deceased). However, a couple of months after filing the present reference and before he died, the latter successfully prayed the Court to endorse his withdrawal from the case in November, 2011. The applicant did not engage another advocate, which is why he on 7.2 . 2014 he appeared in person when the application was brought before us for hearing. We disallowed his request for adjournment which he had sought on the pretext that he intended to engage another advocate to represent him. Our refusal to allow an adjournment was based on the fact that he had ample time in which he could have done so since November, 2011 when the late Magesa withdrew his services, but did not take any positive steps to achieve that goal. We ordered hearing of the application to proceed as was scheduled, hence that he argued the application himself. His brief submission before us on why he was dissatisfied with the decision of the single judge was that, even after reducing the amount to shs 43,370,000/=, the bill of cost was still on the higher side. Without assigning any reasons, he lamented that the Court ought to have reduced the bill of 2 •-' ~osts to shs 13,000,000/= which was suggested by the late Magesa when they were before the single judge. He further pressed this Court to reduce it even more to as low as shs 5,000,000/= on the pretext that it is the amount he can afford to pay on account that he is currently impecunious. He urged us to grant his request. Mr. Ngalo is representing the respondent in this reference too. He submitted that the single judge correctly found and held on page 6 of the ruling he gave that the taxing officer did not show any error of law or · - principle in his decision to attract any interference by that Court. He added that in fact, the applicant has failed to give convincing reasons why this Court sho~ld reduce the amount to the level suggested, and that the allegation that he has no means or ability to pay the said amount does not qualify as a valid ground in the circumstances of this case. He urged us to dismiss the application with costs. We have carefully read the ruling- of the learned single judge against - ·- which the applicant instituted the present reference. We have similarly closely considered the submissions of both sides before us. First and foremost, we agree with the holding of the learned single judge that on the basis of Rule 125 of the Tanzania Cqurt of Appeal Rules, 2009 (the Rules), the reference on taxation by a dissatisfied party is required to be on a matter of law or 3 . principle, and must not be a reference on the question of quantum only. We also agree with the learned single judge that the decision of the taxing officer did not show any error of law or principle to warrant any interference thereof. On the other hand, we agree with Mr. Ngalo that the applicant's allegation that he has no means or ability to pay that amount does not constitute sufficient ground in the circumstances of this case, therefore that he has utterly failed to give convincing reasons why this Court should interfere with the decision of the single judge. We find, therefore, that the application lacks merits and we dismiss it with costs. We accordingly order. DATED at DAR ES SALAAM this lih day of FEBRUARY, 2014. B. M. MMILLA JUSTICE OF APPEAL I certify that this is a true copy of the original. 0I' c-c: · · IZU UTY REGISTRAR COURT OF APPEAL 4